UNIVERSITY  OF  CALIFORNIA   SAN  DIEGO 


3  1822  01897  9211 


''"■"'  '■ ^^.-^..^^aafl 


V 


LIBRARY 

UNIVERSITY  OP 

CALIFORNIA 
SAN  DIEGO 


UNIVERSITY  OF  CALIFORNIA,  SAN  DIEGO 


3  1822  01897  9211 


Our  Judicial  Oligarchy 


Our  Judicial  Oligarchy 


By 

Gilbert  E.  Roe 


With  an  introduction  by 
Robert  M.  LaFollette 


New  York 

B.  W.  Huebsch 

1912 


Copyright,  1911,  by 
The  Robert  M.  LaFollette  Co. 

Copyright,  1912,  by 
B.  W.  Huebsch 


PBINTED  IN  U.  8.  A. 


INTEODUCTION 

The  judiciary  alone,  of  all  our  institutions  of  gov- 
ernment, has  enjoyed  for  many  years  almost  complete 
freedom  from  hostile  criticism.  Until  very  recently, 
this  branch  of  our  government  stood  above  the  legis- 
lative and  executive  departments  in  popular  esteem. 
Unresponsive,  and  unresponsible  to  the  public  the 
courts  dwelt  in  almost  sacred  isolation. 

Within  the  last  two  or  three  years  the  public 
has  begun  to  turn  a  critical  eye  upon  the  work 
of  the  judges.  The  people  in  their  struggle  to  de- 
stroy special  privilege  and  to  open  the  way  for  hu- 
man rights  through  truly  representative  government, 
found  barrier  after  barrier  placed  across  the  way  of 
progress  by  the  courts.  Gradually  the  judiciary  be- 
gan to  loom  up  as  the  one  formidable  obstacle  which 
must  be  overcome  before  anything  substantial  could 
be  accomplished  to  free  the  public  from  the  exactions 
of  oppressive  monoplies  and  from  the  domination  of 
property  interests.  A  new  problem  entered  into  the 
movement  toward  democracy  —  the  problem  of  re- 
moving the  dead  hand  of  precedent  from  the  judiciary 
and  infusing  into  it  the  spirit  of  the  times.  So  the 
people,    in   their   need,    dropped    the   unquestioning 

V 


X 


vi  INTKODUCTIOIsT 

veneration  which  custom  had  fostered  as  a  shield  for 
the  judges,  and  began  to  examine  into  the  tendencies 
and  practices  of  the  courts. 

Such  an  examination  is  certain  to  have  a  whole- 
some effect.  Courts  should  have  no  more  to  fear 
from  honest  criticism  than  do  the  Congress  and  the 
President.  Judges  are  public  servants.  Their  acts 
are  public  acts.  In  a  self-governing  nation,  neither 
courts  nor  their  decisions  can  properly  remain  above 
and  beyond  the  control  of  the  sovereign  citizens. 
Judges  cannot  perform  their  high  function  in  the 
public  interest  unless  they  are  made  acquainted  with 
public  needs  and  are  responsive  to  the  public  will. 

The  judiciary  has  grown  to  be  the  most  powerful 
institution  in  our  government.  It,  more  than  any 
other,  may  advance  or  retard  human  progress.  Evi- 
dence abounds  that,  as  constituted  to-day,  the  courts 
pervert  justice  almost  as  often  as  they  administer  it. 
Precedent  and  procedure  have  combined  to  make  one 
law  for  the  rich  and  another  for  the  poor.  The  re- 
gard of  the  courts  for  fossilized  precedent,  their  ab- 
sorption in  technicalities,  their  detachment  from  the 
vital,  living  facts  of  the  present  day,  their  constant 
thinking  on  the  side  of  the  rich  and  powerful  and 
privileged  classes  have  brought  our  courts  into  con- 
flict with  the  democratic  spirit  and  purposes  of  this 
generation.  Moreover,  by  usurping  the  power  to  de- 
clare laws  unconstitutional  and  by  presuming  to  read 
their  own  views  into  statutes  without  regard  to  the 


INTRODUCTIOX  vii 

plain  intention  of  the  legislators,  they  have  become 
in  reality  the  supreme  law-making  and  law-giving 
institution  of  our  government.  They  have  taken  to 
themselves  a  power  it  was  never  intended  they  should 
exercise;  a  power  greater  than  that  entrusted  to  the 
courts  of  any  other  enlightened  nation.  And  be- 
cause this  tremendous  power  has  been  so  generally 
exercised  on  the  side  of  the  wealthy  and  powerful 
few,  the  courts  have  become  at  last  the  strongest  bul- 
wark of  special  privilege.  They  have  come  to  consti- 
tute what  may  indeed  be  termed  a  "  judicial  oli- 
garchy." 

Sensing  this,  the  people  have  become  distrustful. 
In  various  ways  they  have  shown  their  dissatisfaction 
with  the  work  of  the  courts.  Severe  attacks  have 
been  made  recently  upon  the  integrity  and  ability  of 
certain  judges.  Everywhere  there  is  a  growing  pub- 
lic demand  for  a  change  that  will  bring  the  judiciary 
again  into  its  proper  sphere  and  into  closer  com- 
munion with  the  progressive  ideals  of  this  generation. 

Mr.  Eoe's  book,  "  Our  Judicial  Oligarchy,"  is  a 
most  timely  and  welcome  contribution  to  this  dis- 
cussion. It  stands  alone  in  its  analysis  of  the  causes 
that  have  led  up  to  the  present  unsatisfactory  status 
of  the  courts.  Mr.  Eoe  lets  the  decisions  themselves 
tell  the  story.  He  does  not  "  muckrake  "  the  judges. 
He  feels  that  our  problem  to-day  is  not  merely  one 
of  bad  and  corrupt  judges ;  but  rather  one  of  "  con- 
servative," technicality-ridden  judges  who  are  seeking 


viii  INTRODUCTION 

to  apply  to  modem  conditions  the  principles  of  the 
ancient  law.  Bad  judges  may  be  ousted;  "good" 
judges,  unless  held  to  account,  may  go  on  thwarting 
our  efforts  to  bring  about  social  and  economic  justice. 
Alone  among  those  who  have  written  on  this  sub- 
ject, Mr.  Koe  has  held  up  to  public  inspection  the 
acts  of  the  courts,  as  of  more  significance  than  the 
individual  characters  of  the  judges.  That  is  one 
reason  why  his  book  is  valuable.  When  we  are  ques- 
tioning the  tendency  of  our  courts,  we  must  draw 
our  answers  from  the  most  illuminating  source,  and 
that  naturally  lies  in  the  judicial  decisions. 

With  mind  trained  to  the  law  but  with  vision  un- 
obscured  by  its  technicalities,  Mr.  Roe  has  drawn 
from  decisions  covering  a  long  period  of  years  those 
doctrines  and  rules  that  have  become  the  guide  of  our 
courts.  This  he  does  simply,  clearly,  comprehen- 
sively, dispassionately,  logically,  convincingly.  He 
leaves  the  reader  in  full  possession  of  the  facts,  from 
which  he  may  draw  his  own  conclusions.  He  makes 
no  attacks  on  the  courts,  unless  to  quote  their  own 
decisions  can  be  construed  into  .an  attack.  He  de- 
votes himself  to  our  system  of  laws  rather  than  to 
the  individuals  who  made  the  laws.  He  clearly 
points  out  the  dangers  to  our  institutions  found  in 
the  present  attitude  of  the  courts  and  suggests  a  ra- 
tional remedy. 

From  long  and  intimate  association  with  Mr.  Roe, 
I  may  speak  with  assurance  of  his  especial  fitness 


INTRODUCTION  ix 

to  present  this  important  subject  adequately  and  con- 
structively. At  one  time  he  was  my  partner  in  the 
practice  of  law  at  Madison,  Wisconsin,  Later,  when 
I  left  the  law  to  enter  public  service,  Mr.  Roe  went 
to  New  York.  He  has  succeeded  by  personal  force 
and  superior  mentality  in  attaining  a  leading  and 
independent  position  at  the  bar  of  that  city.  He 
has  always  looked  upon  the  profession  of  law  as  one 
that  involves  to  a  high  degree  responsibility  to  the 
public,  and  it  would  be  difficult  to  find  a  successful 
practitioner  who  combines  with  his  legal  skill  a 
keener  sense  of  duty  to  the  public  good.  The  pro- 
gressive cause  has  found  in  him  an  able  and  unwav- 
ering champion.  Throughout  the  long  contests  in 
Wisconsin  and  more  recently  in  the  nation,  I  have 
found  him  ever  ready  to  make  personal  sacrifices 
when  there  was  need  for  his  wide  knowledge,  his 
splendid  judgment  and  his  fearless  and  uncompromis- 
ing spirit.  In  writing  this  book,  he  has  carried  out 
consistently  his  high  ideals  of  service. 

"  Our  Judicial  Oligarchy "  is  a  thought-provok- 
ing book.  Its  subject-matter  will  doubtless  make  it 
of  especial  interest  to  lawyers  and  judges,  but  its 
readers  will  not,  and  should  not,  be  confined  to  the 
legal  profession.  I  know  of  no  other  volume  that  is 
so  helpful  to  an  understanding  of  the  problems  forced 
upon  us  by  the  courts.  I  know  of  no  other  dis- 
cussion that  contains  saner  or  more  constructive  sug- 
gestions for  solving  those  problems.     The  clearness 


X  INTRODUCTION^ 

of  its  style  and  the  simplicity  with  which  it  handles 
technical  cases,  make  the- book,  even  to  the  reader  not 
versed  in  the  laWj  as  interesting  as  it  is  illuminating. 
I  wish  a  copy  of  this  book  could  be  placed  in  the 
hands  of  every  citizen  of  the  United  States.  This 
book  will  contribute  much  to  the  wise,  wholesome, 
constructive  work  that  must  be  done  in  order  to  re- 
verse the  reactionary  trend  of  judicial  decisions  and 
to  bring  the  courts  abreast  of  the  progressive  ideals 
that  are  transforming  all  our  other  institutions  of 
government. 

Robert  M.  La  Follettb. 

WASHINGTOI^r,   D.    C, 

March,  1912. 


CONTENTS 

Intboduction 


CHAPTER  I 

POPULAR  DISTRUST  OF  THE  COUBTS 

Declaration  of  rights 1 

A   conviction   exists    in   the   popular   mind  that   the 

declaration  of  rights  is  being  disregarded   ...       2 
Evidence  of  the  popular  distrust  of  the  courts      .      .       3-16 

CHAPTER  II 

WHY  THE  PEOPLE  DISTRUST  THE  COUBTS 

(A)  The  courts  have  usurped  the  poicer  to  declare 
laws  unconstitutional 17 

While  the  people  have  been  laying  the  foundation  for 
a  democracy,  the  courts  have  been  building  an 
oligarchy 17-22 

The  three  grounds  of  the  complaint  against  the  courts 

stated 23 

The  Constitution  confers  no  power  on  the  courts  to 

declare  laws  unconstitutional 24-29 

CHAPTER  III 

WHY  THE  PEOPLE  DISTRUST  THE  COUBTS 

(B)  The  courts  having  seized  the  power  to  declare 
some    statutes    invalid,    because    unconstitu- 


xii  CONTENTS 

VACX 

tional,  have  come  to  declare  other  statutes  in- 
valid   merely    because   the   judges   disapprove 

the  policy  of  such  legislation 30 

The  right  to  declare  statutes  unconstitutional  was  at 
first  asserted   by   the   courts  only   in   cases  free 

from  all  doubt 30-34 

Extension  of  the  doctrine  to  include  many  other  cases     34-38 
Statutes    regulating    charges    by    public   service   cor- 
porations held  unconstitutional 38-40 

Employer's  Liability  statutes  held  unconstitutional  .  40-44 
Compulsory  Arbitration  Act  held  unconstitutional  .  44-45 
Workmen's  Compensation  Acts  held  unconstitutional  45-49 
Income  Tax  Act  held  unconstitutional  ......     49-56 


CHAPTER  rV 

WHY    THE   PEOPLE   DISTRUST   THE   COUBTS 

(C)    The  judges  by  reading   their  own  views  into 
statutes,  to  the  exclusion  of  the  legislative  in- 
tent, have  made  the  judiciary,  in  effect,  a  law- 
making branch  of  the  Oovernment  ....      57 
Rules  for  construction  of  statutes  changing  common 

law 58-59 

Construction  of  statute  relieving  married  women  of 

common  law  disabilities 60-62 

The  courts  make  it  as  difficult  as  possible,  to  change 

by  statute,  the  rules  of  the  common  law    ...     63 
Construction  of  the  street  car  transfer  law  of  New 

York 63-68 

Construction  of  the  "  Pure  Food  "  statutes      .      .      .     68-69 
Construction    of   the    Wisconsin    statute    relating   to 

State  conventions 69-73 

Construction  of  the  "  Anti-Trust "  Act  prior  to  the 
decisions  in  the  Standard  Oil  and  the  American 
Tobacco  Company  cases 74-90 


CONTENTS  xiii 

PACE 

Construction  of  the  "  Anti-Trust "  Act  in  the  Stand- 
ard Oil  and  American  Tobacco  Company  cases     .     90-100 
Effect  of  those  decisions  on  the  popular  mind    .      .   100-105 

CHAPTER  V 

WHY  THE  PEOPLE  DISTBTJST  THE  COURTS 

(D)   The  poor  man  is  not  on  an  equality  with  the 

rich  one  before  the  courts 106 

The  judges  think  in  the  terms  of  the  rich  and  power- 
ful         107-109 

Doctrine  of  assumption  of   risk  and  fellow   servant 

rule  growing  out  of  early  English  case     .      .      .    109-112 

The  old  rules  of  master  and  servant  should  not  be  ap- 
plied under  present  industrial  conditions      .      .    112-120 

Courts  destroy  statutes  passed  to  correct  the  hard- 
ships of  the  old  law 120-124 

Doctrine  of  contributory  negligence 124-129 

Early   English    statutes    prohibiting   organization   of 

laborers        130-140 

Courts  have   not  dealt  fairly  with  labor  unions   in 

the  United  States 140-157 

Doctrine  of  vested  rights    .      .      .;     .,    ,.:    i.,     .;     .      .   157-158 

Case  of  Fletcher  v.  Peck    .      .     ,.,    ,.,    ..-,    ,„     ..     .      .   158-162 

Dartmouth  College  case     .....,..;...  162-171 

CHAPTER  VI 

DANGEBS  OF  POPULAR  DISTRUST  OF  COURTS 

The  judiciary  is  the  weakest  branch  of  the  Govern- 
ment         173 

If  the  executive  or  legislative  branches  of  the  govern- 
ment refuse  to  give  effect  to  the  decisions  of  the 
courts,  the  latter  are  powerless 174-180 


xiv  CONTEXTS 

PAGE 

Danger  that  the  people  may  be  goaded  into  taking  too 

drastic  action  concerning  the  courts    ....   180-183 


CHAPTER  VII 

•UGQESTIONS  CONCERNING  REFORMS  IN  THE  JUDICIABT 

How  not  to  reform  the  courts 187 

Recommendations  of  the  Association  of  the  Bar  of  the 

City  of  New  York 188 

Basis  of  complaint  is  not  that  the  courts  have  too  lit- 
tle power,  but  that  they  have  too  much    .      .      .  189-190 

Statistics  of  appealed  cases 191-195 

Free   discussion  of  the   judiciary  miist  precede  any 

effort  to  reform  it 196-204 

The  recall  of  judges 205-218 

The  recall  of  judicial  decisions 218-220 

Some  recent  legislation  limiting  power  of  judges     .  220-225 

Conclusion     .     ..    ...     ..    ^    ..;    ,.,    :.     .     ......  225-226 


OUR  JUDICIAL  OLIGARCHY 

CHAPTER  I 

POPULAR    DISTRUST    OF    THE    COURTS 

"  Every  person  is  entitled  to  a  certain  remedy  in  the 
law  for  all  injuries  or  wrongs  which  he  may  receive  in 
his  person,  property  or  character ;  he  ought  to  obtain  jus- 
tice freely  and  without  being  obliged  to  purchase  it; 
completely  and  without  denial,  promptly  and  without 
delay,  conformably  to  the  laws."  ^ 

THE  above  quoted  declaration  is  found  in  sub- 
stance in  the  constitution  or  bill  of  rights  of 
every  State  in  the  Union.  It  is  now  nearly  seven 
hundred  years  since  the  principle  of  this  declaration 
took  concrete  form  in  Magna  Charta.  It  has  been 
established  and  defended  at  the  cost  of  bloody  revo- 
lutions on  two  continents.  It  is  the  foundation  of 
government  for  all  English-speaking  people.  It  is 
peculiarly  dear  to  the  people  of  the  United  States. 
A  suspicion  in  the  popular  mind  that  this  great 
declaration  was  being  violated,  either  in  its  letter  or 

1  Sec.  9,  Art.  I,  Declaration  of  Rights,  foriniiig  part  of  the 
Constitution  of  the  State  of  Wisconsin. 

1 


2  OUR  -JUDICIAL  OLIGARCHY 

its  spirit,  would  bo  a  cause  for  alarm ;  while  the  con- 
viction by  a  large  number  of  our  people  that  it  was 
being  disregarded  would  be  a  menace  to  existing  in- 
stitutions. That  such  a  conviction  does  exist  to-day 
in  the  minds  of  millions  of  our  citizens,  and  that  the 
ranks  of  those  so  believing  are  being  constantly  aug- 
mented, is  a  fact  easy  of  proof.  State  the  proposi- 
tion, that  every  person  has  a  certain  remedy  in  the 
law  for  any  injury  or  wrong  that  he  may  suffer,  and 
scores  of  instances  will  come  to  your  mind  of  wrongs 
wholly  unredressed.  That  one  may  obtain  justice 
freely,  or  promptly,  or  according  to  the  rules  of  law, 
rather  than  according  to  the  will  of  a  Judge  is  not 
likely  to  be  asserted  to-day  by  any  one  familiar  with 
the  operation  of  our  courts. 

President  Taft,  in  a  speech  delivered  in  Chicago 
on  September  16,  1909,  and  reported  in  the  public 
press  of  that  city,  said : 

"Of  all  the  questions  that  are  before  the  American 
people,  I  regard  no  one  as  more  important  than  this ;  to- 
wit :  The  improvement  of  the  administration  of  justice. 
We  must  make  it  so  that  the  poor  man  will  have  as 
nearly  as  possible  an  equal  opportunity  in  litigating  as 
the  rich  man ;  and  under  present  conditions,  ashamed  as 
we  may  be  of  it,  this  is  not  the  fact." 

In  his  Message  to  the  Sixty-first  Congress,  under 
date  of  December  17,  1909,  President  Taft  sub- 
stantially repeats  the  above  quoted  statement,  and 


POPULAE  DISTRUST  OF  COURTS       3 

further  eays  that  the  deplorable  conditions  in  the 
administration  of  the  law  are  — 

"receiving  the  attention  of  the  Committee  of  the 
American  Bar  Association  and  of  many  State  bar  asso- 
ciations, as  well  as  the  considered  thought  of  judges  and 
jurists." 

Hon.  Walter  Clark,  Chief  Justice  of  the  Supreme 
Court  of  ^orth  Carolina,  recently  said: 

"  At  the  present  time  the  supreme  power  is  not  in  the 
hands  of  the  people,  but  in  the  power  of  the  judges,  who 
can  set  aside  at  will  any  expression  of  the  people's  will 
made  through  an  Act  of  Congress  or  a  State  Legislature. 
These  judges  are  not  chosen  by  the  people,  nor  subject  to 
review  by  them.  This  is  arbitrary  power,  and  the  cor- 
porations have  taken  possession  of  it  simply  by  naming 
a  majority  of  the  judges."  ^ 

It  is  to  be  remembered  that  the  last  person  to  hear 
of  hostile  criticism  of  the  courts  is  the  judge,  and 
next  to  the  judge,  the  lawyer.  It  is  never  for  the 
interests  of  a  lawyer  to  tell  a  judge  that  his  decisions 
are  popularly  regarded  with  disfavor,  nor  is  it  always 
safe  for  him  to  do  so  even  in  the  line  of  his  duty. 
This  is  well  illustrated  by  an  incident  which  oc- 
curred in  an  Appellate  Court  in  New  York  City 
recently,  and  is  reported  in  the  public  press  of  that 
city  under  date  of  February  4,  1911.     From  that 

2  The  Arena  for  November,  1907. 


'4:  OUR  JUDICIAL  OLIGARCHY 

report  it  appears  tliat  a  reputable  attorney,  of  many 
years'  practice  at  the  bar,  filed  a  brief,  in  which  he 
said: 

"  Simply  because  he  (the  opposing  counsel),  before  a 
young  judge  who  rules  sometimes  erroneously,  and  has 
been,  so  appellant  has  been  informed,  reversed  by  this 
court  many  times,  some  of  his  rulings  being  very  fla- 
grant," and  so  forth. 

For  this  statement  he  was  arraigned  at  the  bar  of 
the  court  for  contempt,  and  to  him  the  presiding 
judge  said: 

"  Your  being  a  man  of  mature  years  makes  your  of- 
fense more  aggravating.  In  this  brief  you  have,  with- 
out cause,  unjustly  assailed  a  justice  of  a  court.  The 
time  has  come  when  notice  will  be  served  upon  lawyers 
that  every  judge  of  every  court  must  be  respected.  As 
far  as  I  am  concerned  I  think  you  have  made  no  excuse 
whatever  for  this  unwarranted  attack.  You  can  gain 
nothing  by  criticising  the  court." 

The  foregoing,  I  think  is  a  fair  statement  of  the 
attitude  of  the  courts  toward  criticism  of  its  mem- 
bers. The  same  Appellate  Court,  a  short  time  bo- 
fore,  had,  according  to  the  syllabus  of  the  case,  thus 
characterized  the  same  trial  Court: 

"  Where  the  Court,  upon  the  trial  of  a  cause  therein, 
quarrels  with  the  counsel  for  the  defendant,  gives  him 
no  opportunity  to  interpose  objections  to  questions  asked 


POPULAR  DISTRUST  OF  COURTS       5 

witnesses  by  the  Court,  characterizes  his  objections  as 
ridiculous,  refuses  to  note  an  exception  he  has  taken, 
assumes  to  deny  a  motion  to  strike  out  testimony  taken 
upon  the  examination  of  a  witness  by  the  Court  before 
the  counsel  had  made  such  a  motion,  and  threatens  to 
commit  him  for  contempt  in  the  presence  of  a  Jury, 
such  conduct  on  the  part  of  the  trial  Court  calls  for  a 
reversal  of  a  judgment  entered  upon  a  verdict  in  favor 
of  the  plaintiff."  ^ 

It  is  not  surprising,  therefore,  that  neither  lawyers 
nor  laymen  are  anxious  to  remind  courts  of  their 
mistakes ;  and  popular  discontent  with  the  judiciary 
must  indeed  have  become  formidable  in  order  to 
have  penetrated  the  ranks  of  lawyers  and  even  of  the 
judges  themselves. 

The  recent  so-called  "  attacks  "  of  Mr.  Roosevelt 
upon  the  courts  in  his  speeches  during  the  last  few 
months  as  published  in  the  press  of  the  country  ^ 
are  of  great  significance,  as  indicating  the  esteem  or 
lack  of  esteem  the  people  at  the  present  time  have 
for  the  courts. 

In  a  speech  before  the  Colorado  Legislature,  as  re- 

3  Bennett  v.  Harris,  68  Misc.  (N.  Y.)  503,  For  a  case  in 
which  an  attorney  was  disbarred  for  a  criticism  of  a  judge 
who  was  a  candidate  for  reelection,  see  in  re  Thatcher,  80 
Ohio  St.  492.  The  Legislature  subsequently  reinstated  Mr. 
Thatcher,  and  his  case  is  discussed  in  a  subsequent  chapter. 

*  See  New  York  Times  under  date  of  Aug.  30,  1910  and 
other  papers. 


6  OUR  JUDICIAL  OLIGARCHY 

ported,   Mr.   Roosevelt   speaking  of  two  recent   de- 
cisions of  the  Supreme  Court  said: 

"  If  such  decisions  as  these  two  indicated  the  court's 
permanent  attitude,  there  would  be  really  a  grave  cause 
for  alarm,  for  such  decisions  if  consistently  followed  up, 
would  upset  the  whole  system  of  popular  government." 

He  further  refers  to  such  decisions  as  being  "  fla- 
grant and  direct  contradictions  to  the  spirit  and 
needs  of  the  times." 

Whether  Mr.  Roosevelt  is  right  or  wrong,  is  not 
the  question.  'No  man  in  this  country  has  the  genius 
for  detecting  public  sentiment  that  Mr.  Roosevelt 
has ;  and  no  man  believes  less  in  the  utility  of  taking 
a  position  unsupported  by  public  sentiment.  The 
universal  approval  of  Mr.  Roosevelt's  position  by 
plain  citizens  shows  that,  as  usual,  he  read  aright 
the  popular  mind. 

The  Appeal  to  Reason  is  a  newspaper  published  in 
Girard,  Kansas.  Its  list  of  subscribers  already 
amounting  to  about  half  a  million,  according  to  the 
paper's  statement  of  its  circulation,  has  been  increas- 
ing with  great  rapidity.  Yet  this  paper's  most  suc- 
cessful campaign  for  subscriptions  and  popular  sup- 
port was  based  practically  upon  the  savage  attacks 
it  made  upon  the  Federal  judiciary.  The  sentence 
of  the  editor  of  the  paper  imposed  by  the  Federal 
District  Court  and  affirmed  by  the  Circuit  Court  of 
Appeals,  to  six  months'  imprisonment  and  the  pay- 


POPULAK  DISTRUST  OF  COUKTS       7 

ment  of  a  fine  of  $1,500.00  for  violation  of  a  postal 
law  (Warren  v.  U.  S.,  183  Fed.  718),  was  com- 
muted on  February  1st,  1911,  by  President  Taft,  to 
a  fine  of  $100.00  to  be  collected  only  in  a  civil  suit. 
In  commenting  on  the  sentence.  President  Taft,  as 
reported  in  the  public  press  at  the  time,  is  stated  to 
have  said : 

"The  District  Court  evidently  looked  beyond  the 
record  of  the  evidence  in  this  case  and  found  that  War- 
ren was  the  editor  and  publisher  of  a  newspaper  engaged 
in  a  crusade  against  society  and  government. 

"  Moreover,  this  is  not  a  prosecution  for  criminal 
libel ;  it  is  a  prosecution  for  what  at  best  is  the  violation 
of  a  regulation  as  to  the  use  of  mails.  To  visit  such  an 
offense  with  a  severe  punishment  is  likely  to  appear  to 
the  public  to  be  an  effort  to  punish  the  defendant  for 
something  that  could  not  be  charged  in  the  indict- 
ment.'' ^ 

There  are  no  doubt  some  who  will  consider  the 
language  of  the  President  above  quoted  as  a  more 
severe  criticism  of  the  court  than  anything  ever  said 
of  it  by  the  editor  of  the  Appeal  to  Reason,  and  its 
weight  is  not  lessened  by  the  fact  that  it  obviously 
was  not  intended  as  a  reflection  upon  the  court. 

All  political  parties  in  the  campaign  of  1908, 
recognized  in  their  platforms  the  necessity  for  con- 
demning the  recent  usurpation  of  power  by  the  courts. 

6  See  press  reports  of  the  pardon  under  date  of  February 
2,  1911. 


8  OUR  JUDICIAL  OLIGARCHY 

I  give  in  a  footnote  the  material  provisions  of  tbe 
Republican  and  Democratic  platforms  on  this  sub- 
ject.® The  platfonn  of  the  other  political  parties 
condemned  the  Republican  and  Democratic  parties 
on  this  subject  as  not  going  far  enough. 

The  Socialist  Party,  casting  half  a  million  votes,  in 
its  platform  for  1908,  declared  "  our  courts  "  are  "  in 
the  hands  of  the  ruling  classes." 

The  platform  of  the  Independence  Party,  adopted 
at  Chicago  July  28,  1908,  contains  this: 

"  The  Independence  Party  condemns  the  arbitrary 
use  of  the  writ  of  injunction  and  contempt  proceedings 

^Republican  Platform:  "We  believe,  however,  that  the 
rules  of  procedure  in  the  federal  courts  with  respect  to 
the  issuance  of  the  writ  of  injunction  should  be  more 
accurately  defined  by  the  statute,  and  that  no  injunction,  or 
temporary  restraining  order,  should  be  issued  without  notice 
except  where  irreparable  injury  would  result  from  delay,  in 
which  case  a  speedy  hearing  thereafter  should  be  granted." 

The  Democratic  Platform:  "  Experience  has  proved  the 
necessity  and  we  reiterate  the  pledge  of  our  National  Plat- 
forms of  1896  for  a  modification  of  the  present  law  relating 
to  injunctions,  and  1904  in  favor  of  the  measure  which  passed 
the  United  States  Senate  in  1896,  but  which  a  Republican 
Congress  has  ever  since  refused  to  enact;  relating  to  con- 
tempts in  federal  courts  and  providing  for  trial  by  jury  in 
cases  of  indirect  contempt. 

"  Questions  of  judicial  practice  have  arisen,  especially  in 
connection  with  industrial  disputes.  We  deem  that  the  par- 
ties to  all  judicial  proceedings  should  be  treated  with  rigid 
impartiality,  and  that  injunctions  should  not  be  issued  in  any 
cases  in  which  injunctions  would  not  issue  if  no  industrial 
dispute  were  involved." 


POPULAR  DISTRUST  OF  COURTS       9 

as  a  violation  of  the  fundamental  American  right  of 
trial  by  jury.  From  the  foundation  of  our  government 
down  to  1872  the  Federal  judiciary  act  prohibited  the 
use  of  any  injunction  without  reasonable  notice,  usually 
after  a  hearing.  We  assert  that  in  all  actions  growing 
out  of  a  dispute  between  employers  and  employes  con- 
cerning terms  or  conditions  of  emplojonent,  no  injunc- 
tion should  issue  until  after  a  trial  upon  the  merits, 
that  such  trial  should  be  held  before  a  jury,  and  that 
in  no  case  of  alleged  contempt  should  any  person  be 
deprived  of  liberty  without  a  trial  by  jury." 

The  platform  of  the  People's  Party,  adopted  at 
St.  Louis,  April  3,  1908,  contained  this: 

"  We  condemn  all  unjust  assumption  of  authority  by 
inferior  Federal  Courts  in  annulling  by  injunction  the 
laws  of  the  States,  and  demand  legislative  acts  by  Con- 
gress which  will  prohibit  such  usurpation  and  will  re- 
strict to  the  Supreme  Court  of  the  United  States  the 
exercise  of  power  in  cases  involving  State  Legislation," 

Since  1908,  State  platforms  of  political  parties 
have  in  many  instances  gone  further  in  condemning 
the  usurpation  of  power  by  the  courts  than  those 
above  quoted.  The  constitutions  of  new  States  re- 
cently admitted  to  the  Union  evidence  the  same 
thing.  For  example,  the  Oklahoma  constitution  pro- 
vides for  a  jury  trial  in  cases  of  contempt  of  court; 
and  the  proposed  Constitution  of  Arizona  accepted 
by  the  people  by  an  overwhelming  majority  but  ve- 


10  OUR  JUDICIAL  OLIGARCHY 

toed  by  the  President  contained  a  clause  providing 
for  the  "  recall  "  of  judges. 

Miss  Jane  Addams,  the  great  sociological  authority, 
who  certainly  is  conservative  in  act  and  speech,  says : 

"  From  my  experience  I  should  say  perhaps  that  the 
one  symptom  among  working  men  which  most  distinctly 
indicates  a  class  feeling  is  a  growing  distrust  of  the  in- 
tegrity of  the  courts,  the  belief  that  the  present  judge 
has  been  a  corporation  attorney,  that  his  sympathies  and 
experience  and  his  whole  view  of  life  is  on  the  corpora- 
tion's side."  ^ 

In  the  City  of  "New  York  during  the  early  months 
of  1911  there  was  held  what  is  called  a  Child's  Wel- 
fare Exhibit,  meaning  an  exhibit  which  shows  the 
conditions  under  which  the  children  of  the  less  for- 
tunate classes  live.  It  was  a  most  conservative  and 
benevolent  undertaking,  conducted  by  most  conserva- 
tive and  benevolent  people.  Tremendous  crowds 
were  in.  attendance  upon  it  constantly  for  weeks. 
Prominent  among  its  exhibits  was  a  quotation  from 
an  opinion  of  the  Court  of  Appeals  of  the  State  of 
New  York.^  The  history  of  the  case  is  as  follows: 
In  1884  the  Legislature  of  the  State  of  New  York 
passed  an  Act  entitled  "  An  Act  to  Improve  the 
Public  Health  by  Prohibiting  the  Manufacture  of 
Cigars  and  the  preparation  of  Tobaccos  in  any  form 
in  Tenement  Houses  in  certain  cases,"  etc. 

f  13  American  Journal  of  Sociology,  p.  772. 

•  Matter  of  Application  of  Jacobs,  98  N.  Y.  98,  113. 


POPULAR  DISTRUST  OF  COURTS     11 

The  Court  of  Appeals,  in  the  case  cited,  held  this 
law  unconstitutional,  and  in  the  opinion  used  the 
language  prominently  displayed  in  letters  nearly  a 
foot  long,  in  the  Child's  Welfare  Exhibit;  the  lan- 
guage is  as  follows : 

"  It  cannot  be  conceived  how  the  cigar  maker  is  to  be 
improved  in  his  health  or  his  morals  by  forcing  him 
from  his  home  and  its  hallowed  association  and  benefi- 
cent influences  to  ply  his  trade  elsewhere." 

Under  this  quotation  in  the  Child's  Welfare  Ex- 
hibit Avas  the  statement,  in  equally  large  letters: 
"  This  decision  has  hlocked  effective  tenement  house 
legislation  up  to  the  present." 

That  the  decision  of  its  highest  court  should  be 
held  up  to  the  scorn  and  contempt  of  the  people  of 
the  State  by  the  exceedingly  conservative  and  philan- 
thropic persons  managing  this  Exhibit  is  very  signifi- 
cant ;  and  the  remarks  that  I  heard  made  by  those 
who  read  the  placard  were  not  less  so. 

President  Hadley  of  Yale  University  in  a  recent 
article  entitled,  "  The  Constitutional  Position  of 
Property  in  America  "  had  this  to  say : 

"  The  general  status  of  the  property  owner  under  the 
law  cannot  be  changed  by  the  action  of  the  legislature 
or  the  executive,  or  the  people  of  a  State  voting  at  the 
polls,  or  all  three  put  together.  It  cannot  be  changed 
without  either  concensus  of  opinion  among  judges  which 
should  lead  them  to  retrace  their  old  views,  or  an  amend- 


12  OUR  JUDICIAL  OLIGARCHY 

ment  of  tlie  Constitution  of  the  United  States  by  the 
slow  and  cumbersome  machinery  provided  for  that  pur- 
pose, or,  last  —  and  I  hope  most  improbable  —  a  revolu- 
tion/' » 

Concerning  President  Iladley's  article,  The  Inde- 
pendent in  the  same  issue  bj  the  way  of  editorial 
comment  said: 

"Among  the  multiplying  signs  of  change,  President 
Hadley's  keen  analysis  in  The  Independent  of  this  week 
of  the  constitutional  position  of  property  in  America 
is  one  that  cannot  pass  unnoticed.  It  will  not  be  ig- 
nored by  the  beneficiaries  of  privilege,  nor  by  the  plain 
man  who  is  allowed  to  vote,  so  long  as  we  have  Supreme 
Courts  to  prevent  his  vote  from  doing  harm  to  property 
rights, 

"  What  millions  of  plain  men  have  inarticulately  felt. 
President  Hadley  has  turned  into  clean-cut  phrases  that 
will  live  for  many  a  day.  A  state  of  affairs  which  plain 
men  have  felt  the  increasing  pressure  of,  without  being 
able  to  understand  why,  in  a  republic,  the  task  of  con- 
tending against  it  should  turn  out  to  be  almost  hopeless. 
President  Hadley  has  explained  so  simply  and  so  clearly 
that  no  citizen  with  any  intelligence  at  all  can  fail  to 
see  precisely  what  it  is  that  democracy  in  America  is  up 
against." 

Delos  F.  Wilcox,  Ph.  D.,  in  The  Independent  of 
October  22,  1908,  referring  to  the  Hadley  article 
said: 

»  The  Independent  of  April  16,  1910. 


PdPULAK  DISTRUST  OF  COUKTS     13 

"  As  a  matter  of  fact  it  is  not  Bryan  or  Eooscvclt  or 
Lincoln  Steffens  or  Charles  Edward  Eussell  that  is  the 
revolutionist ;  these  men  talk ;  the  Supreme  Court  of  the 
United  States  acts.  .  .  .  Who  are  these  judges  who 
may  not  be  criticized  by  the  humble  citizens  from  whom 
in  theory  all  the  powers  of  government,  judicial  as  well 
as  legislative  and  executive,  emanate?  In  the  first 
place  they  are  lawyers,  though  not  always  good  ones. 
.  .  .  The  truth  is  that  all  kinds  of  men  occupy  the 
bench,  among  them  men  who  secured  their  positions 
through  all  the  different  degrees  of  political  chicanery 
practiced  in  American  politics.  Judges  appointed  for 
life,  having  no  fear  of  the  power  of  the  people  or  of  the 
executive  to  rebuke  them,  are  likely  to  interpret  the  law 
according  to  their  own  interests  and  sympathies,  what- 
ever they  may  be." 

At  the  Governors'  conference,  held  in  Spring 
Lake,  !N".  J.,  September  14th,  1911,  a  remarkable 
arraignment  of  the  Judiciary  was  made  by  Hon. 
Chester  H.  Aldrich,  Governor  of  Nebraska,  and  the 
action  of  the  Governor,  in  criticizing  Federal  Judge 
Sanborn  for  the  decision  in  the  Minnesota  rate  case, 
hereafter  discussed,  was  so  far  approved  by  the  Con- 
ference, that  it  appointed  a  committee  to  appear  be- 
fore the  Supreme  Court  when  that  case  was  pre- 
sented on  appeal.  Among*  other  things,  Governor 
Aldrich  said: 

"  Therefore,  I  say,  that  when  any  court,  whether  it 
be  the  United  States  Supreme  Court  or  a  court  of  in- 


14  CUE  JUDICIAL  OLIGAKCHY 

ferior  jurisdiction,  continually  makes  effort  by  a  ju- 
dicial decision  to  do  that  which  the  people  and  the 
people  alone  have  a  right  to  do,  then  I  say  that  such  a 
court  is  seeking  to  establish  judicial  tyranny. 

"  And  if  allowed  to  proceed  unchallenged  along  the 
line  of  this  unwarranted  assumption  of  power,  repre- 
sentative government  will  simply  be  that  in  name  only.'' 

Again  in  the  same  address,  Governor  Aldrich, 
referring  to  the  Sanborn  decision,  said : 

"  But  here  is  a  court  opinion  that  goes  out  of  its 
way  to  bring  in  isolated  instances,  and  totally  ignores 
the  weight  of  authority  wherein  it  has  been  held  in 
some  leading  cases  by  our  Supreme  Court  that  a  State 
railway  commission  may  compel  interstate  trains  to 
stop  at  certain  stations  within  a  State  or  may  change 
its  time  schedule  to  make  connection  with  other  trains 
and  many  other  things  of  a  like  nature.  These  seem 
to  have  been  conveniently  forgotten  by  the  learned  judge 
in  the  Minnesota  case." 

Again,  in  the  same  address,  he  said : 

"  Probably  a  whole  lot  of  this  trouble  comes  from  the 
fact  that  in  many  instances  these  inferior  courts  are 
composed  of  lawyers  who  owe  their  position,  not  so 
much  to  legal  attainment  and  profound  learning,  as 
they  do  to  political  service  rendered.  That  explains 
why  in  so  many  instances  these  court  opinions  sound 
very  like  the  argument  of  a  lawyer  who  holds  the  brief 
of  a  railroad  company,  rather  than  an  important  influ- 


POPULAR  DISTRUST  OF  COURTS     15 

ential  and  powerful  position  at  the  hands  of  the  judicial 
system  of  our  country." 

I  could  fill  many  pages  with  quotations  snoh  as  the 
foregoing  from  the  most  thoughtful  and  intelligent 
men  and  women  of  the  country.  I  have  carefully 
refrained  from  referring  to  the  open  hostility  exist- 
ing at  the  present  time  between  the  courts  and 
organized  labor.  I  have  quoted  none  of  the  de- 
nunciations of  the  courts  which  fill  what  are  called 
class  or  radical  publications.  But  it  is  not  to  be 
forgotten  that  the  readers  and  supporters  of  such 
publications  are  numbered  by  the  millions.  I  have 
not  referred  to  the  fact  that  in  a  large  class  of  cases 
of  individuals  against  corporations,  the  whole  strug- 
gle of  the  defendant  is  to  have  the  case  taken  from 
the  Jury  by  the  Judge,  while  the  plaintiff  asks  no 
more  than  that  the  Jury  be  given  a  chance  to  pass 
upon  the  facts.  The  Judge  and  Jury  in  this  class 
of  cases  mutually  distrust  each  other  and  the  result 
is,  since  the  power  is  with  the  Judge,  that  Juries 
have  ceased  to  be  independent  triers  of  the  facts. 
Recently  I  heard  a  Federal  Judge  say  from  the 
bench,  that  in  all  his  years  of  service  as  a  Judge, 
there  had  never  been  but  one  verdict  rendered  in  his 
Court  contrary  to  his  views.  I  have  not  referred  to 
the  many  attempts  made  by  Congress  and  State 
Legislatures  in  recent  years  to  correct  by  statute  the 
injustice  of  judicial  decisions,  nor  to  the  fact  that 


16  OUR  JUDICIAL  OLIGAECHY 

such  attempts  have  heen  largely  rendered  abortive 
by  the  action  of  the  courts  in  declaring  such  laws 
invalid.  These  matters  will  be  considered  in  subse- 
quent chapters.  I  have  here  merely  gathered  to- 
gether a  few  of  the  evidences  of  the  sober  and 
conservative  public  sentiment  on  this  question  which 
indicates  that  we  may  be  in  the  dilemma  suggested 
by  President  Hadley  where  the  work  of  the  courts 
must  be  undone  either  by  constitutional  amendments, 
or  by  the  courts  themselves  overturning  their  own 
decisions,  or  finally,  as  President  Hadley  suggests, 
—  a  revolution. 


CHAPTER  II 

WHY  THE  PEOPLE  DISTRUST  THE  COUKTS 

(A)     The  Courts  have  usurped  the  power  to  declare  laws  un- 
constitutional. 

STARTING  from  the  same  point  —  The  Consti- 
tution of  the  United  States  —  the  people  and 
the  federal  courts  have  been  traveling  in  opposite 
directions  for  more  than  a  hundred  years.  The  State 
courts  at  first  with  some  hesitation,  have  in  the  main 
followed  the  lead  of  the  federal  courts.  While  the 
people  have  been  remaking  the  Constitution  so  as 
to  obtain  more  complete  and  immediate  control  of 
their  government,  the  courts  have  been  remaking  the 
Constitution  so  as  to  escape  more  completely  from 
popular  control.  While  the  people  have  been  laying 
the  foundation  for  democracy,  the  courts  have  been 
building  an  oligarchy. 

We  have  but  to  compare  the  share  in  government 
which  the  Constitution  assigned  to  the  people,  and 
that  which  they  actually  possess  to-day,  to  see  how 
radical  is  the  change  which  has  been  made  in  a  few 
years.  When  the  Constitution  was  adopted  in  1787, 
there  was  no  such  thing  as  manhood  suffrage  in  the 

17 


18  OUR  JUDICIAL  OLIGARCHY 

colonies.  The  right  to  vote  or  hold  office  was  de- 
pendent on  property  qualifications.*  Both  Daniel 
Webster  and  Chancellor  Kent  viewed  with  alarm  the 
prospect  that  freehold  property  should  cease  to  be 
the  foundation  of  government,  and  it  was  not  until 
the  Constitutions  of  the  Western  States  were  adopted 
after  1816  that  manhood  suffrage  became  the  rule.^ 
To-day  not  only  is  manhood  suffrage  practically  uni- 
versal ^  but  the  women  in  many  of  the  States  are 
now  admitted  to  suffrage  on  equal  terms  with  men, 
and  the  movement  to  extend  suffrage  to  women  is 
everywhere  steadily  progressing.  By  the  terms  of 
the  Constitution,  property  in  the  form  of  slaves  was 
given  representation  in  the  government.  Since  that 
time  the  slaves  have  been  not  only  freed,  but  given 
the  ballot.  When  the  Constitution  was  adopted  so 
little  was  thought  of  the  people's  ability  to  govern 
themselves  that  the  framers  of  that  instrument  pro- 
vided that  the  President  should  be  elected  by  a  col- 
lege of  electors,  designed  to  act  independently  of  the 
will  of  the  people.  Carrying  out  the  idea  of  the  dis- 
trust of  the  masses,  the  Constitution  provided  for  the 

1  The  Americcm  Nation,  A,  History  (A,  B.  Hart,  Editor), 
Vol.  IX,  p.  150. 

2  Id.,  Vol.  XIV,  pp.  175-6. 

3  AH  states  abolished  property  qualifications  before  Rhode 
Island  did  so,  but  that  state  finally  dropped  that  qualifica- 
tion in  1888.  There  are  now  merely  some  minor  tax  qualifi- 
cations in  a  few  of  the  states,  and  some  very  elementary 
educational  qualifications.     Id.,  Vol.  XXVI,  p.  3. 


WHY  THE  PEOPLE  DISTRUST         19 

election  of  irniteJ  States  Senators  by  the  legislatures 
of  the  several  States.  The  people  without  fonnally 
amending  the  Constitution,  have  rendered  nugatory 
the  provision  for  the  election  of  the  President  by 
an  electoral  college,  and  have  substituted  therefor  a 
direct  popular  vote.  Equally  dead  in  a  number  of 
the  States  is  the  Constitutional  provision  respecting 
the  election  of  United  States  Senators  by  legislatures, 
and  it  now  seems  certain  that  evei*y  state  will,  in 
the  near  future,  select  its  Senators  by  direct  vote  of 
the  people,  whether  a  formal  amendment  to  the 
Constitution  on  the  subject  is  adopted  or  not.^ 

Great  as  these  changes  are,  however,  they  are  in- 
significant in  their  effect  on  popular  government, 
compared  with  the  tremendous  consequences  involved 
in  the  laws  providing  for  the   Secret  Ballot,   and 

*  California,  Missouri,  Nebraska,  Oregon  and  Wisconsin 
have  all  provided  by  law,  during  the  last  few  years,  for  a 
popular  vote  on  candidates  for  the  United  States  Senate.  A 
measure  has  many  times  in  recent  years  passed  the  House 
of  Representatives  by  the  necessary  two-thirds  majority,  to 
amend  the  Constitution  so  as  to  elect  Senators  by  popular 
vote,  but  such  measure  was  never  brought  to  a  vote  in  the 
United  States  Senate  until  February,  1911,  and  while  it  failed 
of  the  necessary  two-thirds  majority,  fifty-four  Senators  voted 
in  favor  of  it,  and  only  thirty-three  against  it.  Con.  Rec, 
Feb.  28,  1911,  p.  3787.  On  June  12,  1911,  the  United  States 
Senate  voted  in  favor  of  a  constitutional  amendment,  pro- 
viding for  the  direct  election  of  United  States  Senators.  The 
House  had  previously  voted  favorably  on  the  same  proposition, 
but  since  the  resolution  was  amended  by  the  Senate,  it  had 
to  go  to  conference,  and  so  for  the  time  being  failed  of  passage. 


20  OUR  JUDICIAL  OLIGARCHY 

Direct  Primaries,  and  for  the  Initiative,  E^ferendum 
and  Recall.^ 

It  is  hardly  worth  while  to  make  up  the  roll  of 
States  in  which  these  various  reforms  have  been 
adopted,  for  by  the  time  the  list  is  completed  other 
States  will  be  added.  There  has  been  more  funda- 
mental legislation  in  favor  of  popular  government 
enacted  in  the  last  fifteen  years  than  in  all  the  pre- 
vious history  of  the  country,  and  that  which  has 
already  been  adopted  is  only  a  small  part  of  the 
programme  now  pending.'^  It  is  to  be  remembered 
that  the  mass  of  people  are  always  much  in  advance 
of  their  political  representatives  in  a  movement  to- 
ward democracy,  so  that  the  legislation  already  en- 

6  More  than  one-half  the  states  at  the  close  of  1911  had 
direct  primaries,  all  adopted  in  recent  years.  The  Initiative 
and  Referendum  have  been  lately  adopied  in  California,  Colo- 
rado, Maine,  Missouri,  Wisconsin  and  Montana.  Michigan 
has  the  Initiative  and  Referendum  on  amendments  to  the 
Constitution.  Utah  adopted  a  Constitution  providing  for 
Initiative  and  Referendum  in  1900,  but  the  legislature  has 
thus  far  avoided  enacting  a  law  to  put  it  into  effect.  Cali- 
fornia, South  Dakota^  Wisconsin  and  Washington  already 
have  the  recall. 

8  The  National  Progressive  Republican  League  was  organized 
January  21,  1911.  Among  its  organizers  are  9  leading 
United  States  Senators  and  13  leading  members  of  the 
House  of  Representatives  and  6  governors  of  states.  This 
organization  has  for  its  avowed  purpose  not  only  the  election 
of  United  States  Senators  by  popular  vote,  but  the  establish- 
ment of  the  Initiative,  Referendum,  Recall,  Direct  Primaries, 
Corrupt  Practice  Acts,  and  other  democratic  legislation 
throughout  the  country. 


WHY  THE  PEOPLE  DISTRUST         21 

acted  is  not  tlie  highwater  mark  of  the  popular 
demand.  Even  the  most  radical  of  the  men  of  1787 
who  participated  in  the  formation  of  the  Constitution 
never  dreamed  of  a  government  wherein  the  people 
possessed  such  powers  as  the  people  of  this  country 
now  exercise,  and  the  Constitution  was  clearly  framed 
with  a  view  of  preventing  the  exercise  of  such  powers 
by  the  masses.  Impelled  by  the  spirit  of  democracy, 
the  people  of  this  country  have  found  ways  to  avoid 
the  Constitution  and  possess  themselves  of  the  in- 
struments of  government. 

But  this  is  only  a  small  part  of  the  story.  Im- 
mediate control  of  the  machinery  of  government  is 
a  means,  not  an  end.  The  people  demand  the 
Initiative  and  Referendum  because  they  wish  to  make 
or  unmake  laws.  They  demand  the  right  to  recall 
their  representatives,  because  they  are  determined 
that  those  representatives  shall  at  all  times  obey  the 
popular  vdll.  The  injustice  of  the  old  laws  made 
plain  by  knowledge  and  experience  is  to  be  corrected ; 
and  the  new  problems,  which  are  the  greatest  that 
ever  confronted  any  people  in  the  history  of  the 
world,  must  also  be  met.  The  people  have  decided 
that  they  can  do  this  work  for  themselves,  and  have 
entered  upon  it.  The  tradition  of  the  ages,  which 
obtained  when  the  Constitution  was  adopted,  that 
the  people  must  be  protected  against  themselves  by 
the  wealth  and  intelligence  and  better  element  of  the 
community  is  exploded.     N'o  man  could  now  be  the 


22  OUB  JUDICIAL  OLIGARCHY 

candidate  of  any  party  for  any  position  who  main- 
tained such  a  dogina. 

The  relation  of  the  individual  to  his  government 
has  been  changed  much  more  in  this  country  since 
the  adoption  of  the  Constitution  than  it  was  by  its 
adoption.  Greater  reforms  in  government  have  re- 
sulted from  the  peaceful  methods  of  the  last  quarter 
of  a  century  than  were  accomplished  by  the  American 
Revolution. 

Of  all  the  agencies  of  government  the  courts  alone 
have  shown  themselves  insensible  of,  or  indifferent  to, 
this  charge.  The  differences  between  the  people  and 
their  courts  to-day  do  not  arise,  as  on  some  occasions 
in  the  past,  over  a  single  decision.  The  differences 
are  more  fundamental  and  far  reaching  than  those 
which  arose  at  the  time  of  the  Dred  Scott  decision. 
The  courts  are  frankly  the  champions  of  the  old  order 
as  against  the  new.  They  stand  for  the  "  sacred 
rights  of  property  "  as  against  "  individual  rights." 
Their  decisions,  it  is  charged,  are  protecting  special 
privilege,  and  represent  ideas  of  government  and  of 
law  which  are  in  conflict  with  the  convictions  of  a 
majority  of  the  people.  Either  those  decisions  must 
go  down  and  cease  to  be  law,  or  the  forces  of  democ- 
racy and  popular  rule  must  be  turned  back.  Which 
shall  it  be  ? 

There  are  three  principle  grounds  of  complaint 
against  the  courts. 


WHY  THE  PEOPLE  DISTRUST         23 

First,  that  they  have  usurped  the  power  to  declare 
statutes  unconstitutional,  and  therefore,  invalid. 

Second,  that  having  seized  the  power  to  declare 
some  statutes  invalid,  because  unconstitutional,  the 
courts  have  come  to  legislate  generally,  by  declaring 
other  statutes  invalid  merely  because  they  doubted 
the  wisdom  or  the  justice  of  such  laws,  and  by  read- 
ing their  own  opinions  into  other  statutes  regardless 
of  the  legislative  intention. 

Third,  that  the  poor  man  is  not  on  an  equality 
with  the  rich  one  before  the  courts. 

That  the  courts  of  this  country  exercise  the  power 
to  declare  any  statute  invalid  which  appears  to  them 
in  conflict  with  the  Constitution  is,  of  course,  ad- 
mitted. A  single  individual,  if  only  he  hold  judicial 
ofiice,  may  destroy  a  most  excellent  law  desired  by 
practically  all  the  people,  duly  passed  by  large  ma- 
jorities in  both  Houses  of  Congress,  and  approved 
by  the  President.  This  has  been  done  again  and 
again  within  the  last  few  years.  So  far  as  really 
important  legislation  is  concerned,  such  as  that  re- 
lating to  taxation,  commerce,  labor,  corporations, 
trusts  and  the  like.  Congress  has  become  little  more 
than  a  body  to  initiate  or  propose  legislation.  The 
real  power  to  declare  whether  that  shall  be  law  which 
Congress  and  the  President  have  enacted  into  law,  is 
exercised  by  the  courts.  Whether  the  Constitution 
conferred  this  power  upon  the  courts,  or  whether  they 


24  OUR  JUDICIAL  OLIGARCHY 

have  simply  assumed  it  without  Constitutional 
authority,  and  contrary  to  the  intention  of  the 
framers  of  that  document,  becomes  a  pertinent  ques- 
tion in  view  of  the  agitation  at  the  present  time  to 
deprive  the  courts  of  such  power,  or  at  least,  to  very 
materially  modify  it.  It  is  within  the  scope  of  this 
work  only  to  suggest  the  leading  facts  upon  which 
this  question  turns. 

In  the  first  place  it  is  to  be  noted  that  the  courts 
of  no  other  country  claim  the  right  to  set  aside  the 
laws  made  by  the  legislative  branch  of  the  Govern- 
ment. In  England,  of  course  the  Constitution  is 
unwritten,  but  that  fact  would  seem  to  be  an  argu- 
ment in  favor  of  the  exercise  of  such  power  by  the 
courts,  rather  than  against  it,  for  where  the  Constitu- 
tion is  written  so  that  it  may  be  read  as  well  by  one 
department  of  the  government  as  another,  there 
would  seem  to  be  less  excuse  than  otherwise  for  lodg- 
ing the  exclusive  right  to  finally  interpret  the  Con- 
stitution in  one  branch  of  the  government  to  the 
exclusion  of  the  others.  At  all  events,  however, 
France,  Germany  and  Switzerland,  and  our  sister 
republics  on  this  Continent,  and  indeed  most  coun- 
tries have  written  Constitutions  and  in  none  of  them 
do  the  courts  claim  the  prerogative  of  invalidating 
laws  merely  because  they  may  think  such  laws  con- 
flict with  the  constitution.  It  is  to  be  remembered 
also  that  the   Federal   Government  has  only   such 


WHY  THE  PEOPLE  DISTRUST         25 

powers  as  are  delegated  to  itJ  It  is  not  pretended 
that  there  is  any  language  in  the  Constitution  which 
expressly  gives  to  the  Judiciary  more  than  to  the 
Executive  or  Legislative  branches  of  the  government, 
power  to  determine  that  a  law  is  in  conflict  with  the 
Constitution.  While  the  proceedings  of  the  Con- 
stitutional Convention  were  secret,  we  know  from 
Mr.  Madison's  Journal  of  that  Convention,  first  pub- 
lished in  1839  and  then  under  the  authority  of  the 
United  States  Government,  and  many  years  after 
the  death  of  all  the  participants  in  the  Convention, 
that  no  motion  was  made  in  the  Convention  to  give 
the  courts  power  to  declare  unconstitutional  any  legis- 
lative act  duly  passed  and  approved  by  the  executive. 
Mr.  Madison  himself  did  move  that  the  Supreme 
Court  in  conjunction  with  the  President  be  given  the 
less  objectionable  authority  to  pass  npon  legislation 
before  it  was  finally  adopted,  and  if  the  Supreme 
Court  should  hold  it  unconstitutional,  make  it  neces- 
sary that  the  measure  in  question  be  passed  by  a  two- 
thirds  vote  of  each  House  before  it  would  become  ef- 
fective as  law.  This  motion  was^three  times  made  in 
the  Constitutional  Convention  and  three  times  voted 
down.  Mr.  Madison's  Journal  shows  the  following 
entries  concerning  the  discussion  on  this  subject: 

"  Mr.  Mercer  disapproved  of  the  doctrine  that  the 
judges  as  expositors  of  the  Constitution  should  have  au- 

7  Tenth  Amendment  in  force  Dec.  15,  1791,  Martin  v.  Hun- 
ter, 1  Wheaton,  326, 


26  ,OUE  JUDICIAL  OLIGARCHY 

thority  to  declare  a  law  void.  He  thought  laws  should 
be  weU  and  carefully  made,  and  then  be  uncontrol- 
able."  8 

"  Mr.  Dickinson  was  strongly  impressed  with  the  re- 
mark of  Mr.  Mercer  as  to  the  power  of  the  judges  to  set 
aside  law.  .  .  .  The  Justiciary  of  Arragon  he  ob- 
served became  by  degrees  the  lawgiver."  ^ 

Mr.  Madison  himself  some  years  after  the  Con- 
stitution was  adopted,  declared  in  Congress  that  a 
decision  of  a  Constitutional  question 

"may  come  with  as  much  propriety  from  the  legis- 
lature as  any  other  department  of  Government."  ^° 

Again, 

"  I  beg  to  know  upon  what  principle  it  can  be  con- 
tended that  any  one  department  draws  from  the  Consti- 
tution greater  powers  than  another  in  making  out  the 
limits  of  the  powers  of  the  several  departments."  ^^ 

Again  he  said : 

"  Nothing  has  as  yet  been  offered  to  invalidate  the 
doctrine  that  the  meaning  of  the  Constitution  may  as 

8  Vol.  IV,  pp.  208-9,  writings  of  James  Madison  as  edited 
by  Gaillard  Hunt. 
» Id.,  p.  210. 

10  Elliot's  Debates,  Vol.  IV,  p.  354  (House  of  Representa- 
tives ) . 

11  Zd.,  p.  382, 


WHY  THE  PEOPLE  DISTRUST        27 

well  be  ascertained  by  the  legislature  as  by  the  judicial 
authority."  ^^ 

John  Marshall,  before  he  became  chief  justice, 
declared  before  the  Supreme  Court  of  the  United 
States : 

"The  legislative  authority  of  any  Country  can  only 
be  restrained  by  its  own  municipal  Constitution ;  this  is 
a  principle  that  springs  from  the  very  nature  of  society, 
and  the  judicial  authority  can  have  no  right  to  question 
the  validity  of  a  law  unless  such  a  jurisdiction  is  ex- 
pressly given  by  the  Constitution/'  ^* 

This  certainly  was  a  logical  argument,  and  when 
the  framers  of  the  Constitution  desired  to  give  the 
federal  courts  power  to  decide  a  state  statute  or 
Constitution  invalid  because  in  conflict  with  the 
federal  Constitution,  or  the  laws  made  in  pursuance 
thereof,  or  treaties  made  under  the  authority  of  the 
United  States,  the  power  so  to  do  was  expressly 
given.  ^* 

It  can  not  well  be  contended  that  the  framers  of  the 
Constitution  assumed  that  the  courts  would  exercise 
such  supervisory  power  over  legislation  as  they  now 
lay  claim  to.  The  debates  in  the  Convention  nega- 
tive any  such  idea  as  does  the  fact  that  the  attempt 
to   exercise   such   power  by   the    State  courts   over 

12  M,  p.  399. 

13  Ware  v.  Hylton,  3  Dallas,  211. 

14  Art.  6,  §  2,  Constitution  of  the  United  States. 


28  OUR  JUDICIAL  OLIGARCHY 

State  statutes  liad  been  sharply  rebuked  by  the  peo- 
ple. ^'^ 

Concerning  the  exercise  of  this  power  by  the  courts, 
in  an  early  North  Carolina  case,  Mr.  Spaight  of  that 
state,  afterwards  Governor  of  the  State,  said: 

"I  do  not  pretend  to  vindicate  the  law  which  has 
been  the  subject  of  controversy;  it  is  immaterial  what 
they  (the  courts)  have  declared  void;  it  is  their  usurpa- 
tion of  the  authority  to  do  it,  that  I  complain  of,  as  I 
do  most  positively  deny  that  they  have  any  such  power ; 
nor  can  they  find  anything  in  the  Constitution,  either 
directly  or  impliedly,  that  will  support  them,  or  give 
them  any  color  of  right  to  exercise  that  authority.  Be- 
sides, it  would  have  been  absurd,  and  contrary  to  the 
practice  of  all  the  world,  had  the  Constitution  vested 
such  power  in  them,  as  they  would  have  operated  as  an 
absolute  negative  on  the  proceedings  of  the  Legislature, 
which  no  judiciary  ought  ever  to  possess,  and  the  State, 
instead  of  being  governed  by  the  representatives  in  the 
general  assembly,  would  be  subject  to  the  will  of  three 
individuals,  who  united  in  their  own  persons  the  legis- 
lative and  judiciary  powers,  which  no  monarch  in 
Europe  enjoys,  and  which  would  be  more  despotic  than 
the  Eoman  decemvirate,  and  equally  insufferable."  ^^ 

15  Spirit  of  American  Oovernment,  by  Smith,  pp.  88-9 ; 
Conflict  over  Judicial  Powers,  by  Haines,  pp.  32-3. 

16  Haines,  The  Conflict  over  Judicial  Powers,  p.  33.  See 
also,  opinion  of  Justice  Gibson  of  Pennsylvania,  in  Eakin  v. 
Raub,  12  Seargent  and  Rawle,  p.  33. 


WHY  THE  PEOPLE  DISTRUST         29 

The  above  suggested  facts  and  circumstances,  while 
by  no  means  exhausting  the  subject,  go  far  to  sup- 
port the  conclusion  reached  by  careful  students  of 
the  question  that  the  exercise  by  the  Courts  of  power 
to  nullify  laws  as  unconstitutional  is  simply  judicial 
usurpation.*'' 

When  it  is  remembered  that  only  thirty-nine  of 
the  sixty-five  delegates  appointed  to  the  Constitutional 
Convention  signed  the  Constitution,  and  that  it  was 
only  after  a  protracted  straggle  that  the  ratification 
of  the  necessary  number  of  States  was  secured,  it  is 
obvious  that  the  Constitution  would  never  have  been 
ratified  by  the  people  had  they  suspected  that  it  gave 
judges  the  power  now  exercised  by  them. 

17  See  Hon.  Walter  Clark,  LL.D.,  Chief  Justice  of  North 
Carolinaj  on  "  Judicial  Supremacy,"  The  Arena,  Feb.,  1908. 


CHAPTER  III 

WHY   THE    PEOPLE   DISTRUST    THE   COUETS 

(B)  The  Courts  having  seized  the  power  to  declare  some 
statutes  invalid,  because  unconstitutional,  have  come 
to  declare  other  statutes  invalid  merely  because  the 
judges  disapproved  the  policy  of  sucli  legislation. 

WHETHER  the  above  charge  is  fully  sustained, 
is  a  question  concerning  which  there  is  a  dif- 
ference of  opinion.  That  it  is  freely  made  and  com' 
monlj  believed,  is  undoubted.^ 

It  is  not  open  to  dispute  that  the  courts  have  car- 
ried the  doctrine  of  judicial  nullification  of  statutes 
far  beyond  the  boundaries  prescribed  by  the  Judges 
who  first  asserted  the  existence  of  the  power  in  the 
courts,  to  declare  statutes  unconstitutional. 

In  the  earliest  case  in  which  the  question  was  con- 

'^  Spirit  of  American  Government,  by  Smith;  American  La/w 
Review,  Vol.  XXVI,  p.  169  (article  by  Judge  Seymour  D. 
Thompson);  "The  Confusion  of  Property  with  Privilege,"  by 
Jesse  F.  Orton  in  the  Independent  of  August  19  and  26,  1909; 
"  Government  by  Judiciary,"  L.  B.  Boudin,  Political  Science 
Quarterly,  Vol.  XXVI,  Nov.  2,  1911;  "Flexibility  of  Law," 
The  Outlook,  Dec.  17,  1910,  Vol.  XCVI,  p.  848;  "The  Judge 
and  the  People^"  The  Outlook,  April  15,  1911,  Vol.  XCVII,  pp. 
809-10.  Also  Outlook  for  Jany.  6,  1912  and  Current  Litera- 
ture for  Sept.  and  Dec,  1911. 

30' 


WHY  TTIE  PEOPLE  DTSTEUST         31 

sidered  by  the  Supreme  Court,  though  not  there  de- 
cided, it  is  said : 

"  To  be  obliged  to  act  contrary  either  to  the  obvious 
directions  of  Congress,  or  to  a  Constitutional  principle 
in  our  judgment  equally  obvious,  excited  feelings  in  U8 
we  hope  never  to  experience  again."  ^ 

In  another  early  case  in  which  this  question  was 
considered  by  the  Supreme  Court,  but  not  decided, 
Mr.  Justice  Iredell,  always  a  strong  advocate  of  tho 
power  of  the  judiciary  to  nullify  statutes,  had  this 
to  say: 

"If  any  act  of  Congress  or  of  the  Legislature  of  a 
State  violates  those  Constitutional  provisions,  it  is  un- 
questionably void ;  though  I  admit  that  as  the  authority 
to  declare  it  void  is  of  a  delicate  and  awful  nature,  the 
court  will  never  resort  to  that  authority,  but  in  a  dear 
and  urgent  case.  If,  on  the  other  hand,  the  Legislature 
of  the  Union  shall  pass  a  law  within  the  general  scope 
of  their  constitutional  power,  the  court  cannot  pro- 
nounce it  void  merely  because  it  is,  in  their  judgment, 
contrary  to  the  principles  of  natural  justice.  The  ideas 
of  natural  justice  are  regulated  by  no  fixed  standard; 
the  ablest  and  purest  men  have  differed  upon  the  sub- 
ject.'' » 

In  the  same  opinion,  Mr.  Justice  Iredell,  quoted  ap- 
provingly from  Sir  William  Blackstone,  as  follows: 

2  Hayburn's  case,  2  Dallas,  412. 
aCalder  v.  Bull,  3  Dallas,  385,  398. 


32  OUR  JUDICIAL  OLIGARCHY 

"  There  is  no  Court  that  has  the  power  to  defeat  the 
intent  of  the  Legislature,  when  couched  in  such  evident 
and  express  words,  as  to  leave  no  doubt  whether  it  was 
the  intent  of  the  Legislature  or  no.     1  Bl.  Com.  91." 

In  Marbury  v.  Madison,  where  the  power  of  the 
judiciary  to  nullify  statutes  is  first  formally  de- 
clared, although  it  was  not  necessary  to  the  decision 
of  the  case,  the  principle  is  recognized  that  it  is  only 
Legislation  clearly  "  repugnant  to  the  Constitution  " 
that  can  be  declared  void.^ 

Before  the  Supreme  Court  had  decided  that  it  had 
power  to  declare  an  Act  of  Congress  void,  Mr.  Justice 
Chase,  in  1796,  said: 

"  If  the  Court  have  such  power,  I  am  free  to  declare 
that  I  will  never  exercise  it  but  in  a  very  clear  case."  ^ 

Mr.  Justice  Strong  said  in  the  Legal  Tender  Cases, 
decided  in  18Y0: 

"It  is  incumbent,  therefore,  upon  those  who  affirm 
the  unconstitutionality  of  an  Act  of  Congress  to  show 
clearly  that  it  is  in  violation  of  the  provisions  of  the 
Constitution."  ^ 

In  the  Trade  Mark  Cases,  decided  in  1879,  Mr. 
Justice  Miller  said : 

4  1  Cranch,  137,  p.  176.  See  also,  McCulIoch  v.  Maryland, 
4  Wheaton,  316-421. 

6  Hylton  V.  U.  S.,  3  Dallas,  171. 
«12  Wall,  457,  p,   631. 


WHY  THE  PEOPLE  DISTRUST        33 

"Wlien  this  Court  is  called  on  in  the  course  of  the 
administration  of  the  law  to  consider  whether  an  act 
of  Congress,  or  any  other  department  of  the  govern- 
ment, is  within  the  constitutional  authority  of  that 
department,  a  due  respect  for  the  coordinate  hranch  of 
the  government  requires  that  we  shall  decide  that  it  has 
transcended  its  powers  only  when  that  is  so  plain  that 
we  cannot  avoid  the  duty."  ' 

Mr.  Justice  Story,  in  1838,  declared  that  if  a 
statute  admitted  of  two  interpretations,  one  of  which 
made  it  constitutional  and  the  other  not,  it  was  al- 
ways the  duty  of  the  Court  to  adopt  the  interpreta- 
tion which  made  the  statute  constitutional,  for  he 
said: 

"  A  presumption  never  ought  to  be  indulged  that 
Congress  meant  to  exercise  or  usurp  any  unconstitu- 
tional authority  unless  that  conclusion  is  forced  upon 
the  Court  by  language  altogether  unambiguous."  ^ 

In  the  Sinking  Fund  Cases,  decided  in  1878,  Mr. 
Justice  Waite  said : 

"  Every  possible  presumption  is  in  favor  of  the 
validity  of  a  statute,  and  this  continues  until  the  con- 
trary is  shown  beyond  a  rational  doubt.  One  branch  of 
the  government  cannot  encroach  on  the  domain  of  an- 
other without  danger.  The  safety  of  our  institutions 
depends  in  no  small  degree  on  a  strict  observance  of 
this  salutary  rule."  ^ 

7  100  U.  S.  82,  p.  96.  »  99  U.  S.  700,  p.  718. 

8  12  Pet.  72,  p.  76. 


34  OUR  JUDICIAL  OLIGARCHY 

As  late  as  1905,  Mr.  Justice  Ilarlan,  in  support 
of  the  right  of  the  Legislature  of  Xew  York  to  limit 
the  hours  of  work  in  bakeries,  declared : 

"If  there  be  doubt  as  to  the  validity  of  the  statute, 
that  doubt  must  therefore  be  resolved  in  favor  of  its 
validity,  and  the  Courts  must  keep  their  hands  off, 
leaving  the  Legislature  to  meet  the  responsibility  for 
imwise  legislation."  ^"^ 

But,  alas,  this  was  the  language  of  a  dissenting 
opinion.  The  majority  of  the  Court  had  already 
entered  upon  the  field  of  judicial  legislation,  and  a 
statute  wholly  beneficent  passed  by  the  Legislature 
of  ^N^ew  York,  approved  by  the  Governor  of  the  State 
and  upheld  by  the  highest  Court  of  the  State  was 
stricken  down  and  destroyed  by  a  majority  vote  of 
five  to  four  in  the  Supreme  Court  of  the  United 
States.  Five  Justices  of  the  Supreme  Court  pitted 
their  judgment  against  that  of  their  four  associates, 
and  against  the  wisdom  and  intelligence  of  the  Legis- 
lature and  Governor  of  the  State  of  New  York,  and 
the  Courts  of  New  York,  and  declared  that  the  law 
in  question  was  unconstitutional.  To  declare  a  law 
unconstitutional  and  void  under  these  circumstances, 
the  Court  must  indeed  have  passed  far  beyond  the 
point  where  a  doubt  as  to  its  constitutionality  re- 
quired a  decision  that  it  was  constitutional. 

loLochner  v.  New  York,  198  U.  S.  45,  68. 


WHY  THE  PEOPLE  DISTRUST         35 

The  dissenting  opinion  of  Mr.  Justice  Holmes,  in 
the  same  case  is  illuminating.^^     He  said: 

"  1  regret  sincerely  that  I  am  unable  to  agree  with 
the  judgment  in  this  case,  and  I  think  it  my  duty  to 
express  my  dissent.  This  case  is  decided  upon  an  eco- 
nomic theory  which  a  large  part  of  the  country  does 
not  entertain.  If  it  were  a  question  whether  I  agree 
with  that  theory  (limiting  the  consecutive  hours  of 
labor  in  bakeries  which  may  be  required  of  an  employe), 
I  should  desire  to  study  it  further  and  long  before  mak- 
ing up  my  mind.  But  I  do  not  conceive  that  to  be  my 
duty,  because  I  strongly  believe  that  my  agreement  or 
disagreement  has  nothing  to  do  with  the  right  of  a 
majority  to  embody  their  opinions  in  law." 

Clearly  the  learned  Justice  believed  and  was  in 
this  language  charging  that  the  majority  of  the 
Court  was  holding  the  law  unconstitutional  because 
the  judges  constituting  a  majority  of  the  Court  did 
not  believe  in  the  economic  theory  formulated  by  the 
statute.  This  is  made  even  clearer  a  little  further 
along  in  the  opinion  of  Justice  Holmes,  where  he 
says: 

"Some  of  these  laws  (referring  to  those  he  has  just 
discussed)  embody  convictions  or  prejudices  which 
judges  are  likely  to  share.  Some  may  not,  but  a  Con- 
stitution is  not  intended  to  embody  a  particular  eco- 
nomic theory,  whether  of  paternalism  and  the  organic 

11  Lochner  v.  N.  Y.,  198  U.  S.,  p.  75. 


36  OUR  JUDICIAL  OLIGARCHY 

relation  of  the  citizen  to  the  State,  or  of  laissez  faire. 
It  is  made  for  people  of  fundamentally  differing  views, 
and  the  accident  of  our  finding  certain  opinions  natural 
and  familiar  or  novel,  and  even  shocking,  ought  not  to 
conclude  our  judgment  upon  the  question  whether  stat- 
utes embodying  them  conflict  with  the  Constitution  of 
the  United  States." 

This  is  in  effect  a  frank  declaration  from  a  mem- 
ber of  the  Supreme  Court,  that  in  the  case  under 
consideration,  the  statute  was  held  unconstitutional 
because  legislation  shortening  the  hours  of  labor  in 
the  occupation  in  question,  was  novel  or  possibly 
shocking  to  the  judges  constituting  the  majority  of 
the  Court.  K^ote  also  the  provision  of  the  Constitu- 
tion of  the  United  States  which  the  majority  of  the 
Court  held  was  violated  by  the  labor  legislation  in 
question.  It  was  the  Fourteenth  Amendment  of  the 
Federal  Constitution  which  it  was  said  forbade  such 
legislation,  and  the  portion  thereof  which  provides : 

"  No  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States;  nor  shall  any  State  deprive  any  person 
of  life,  liberty  or  property  vrithout  due  process  of  law, 
nor  deny  to  any  person  within  its  jurisdiction,  the  equal 
protection  of  the  laws." 

Every  one  knows  that  the  sole  intent  and  purpose 
of  the  people  in  adding  this  amendment  to  the  Con- 
stitution, was  to  protect  the  theii  recently  emanci- 


WHY  THE  PEOPLE  DISTRUST        37 

pated  negroes  in  their  rights  of  citizenship.  The 
courts,  however,  have  made  this  amendment  include 
all  manner  of  trusts  and  corporations,  and  of  con- 
tracts and  practices,  none  of  which  were  even  in  the 
thought  of  the  people  when  they  adopted  the  amend- 
ment. In  the  hands  of  the  courts,  this  amendment 
has  become  a  shield  to  protect  corporations  and  com- 
binations of  wealth  from  the  legislation  aimed  at 
them  by  an  indignant  public,  and  also  a  sword  by 
which  statute  after  statute  has  been  cut  down,  enacted 
by  the  law-making  branch  of  the  government  in  the 
public  interest.  Xo  one  supposes  that  even  with  the 
public  feeling  following  the  Civil  War,  existing  in 
1868,  when  this  amendment  was  adopted,  that  it 
would  have  been  accepted  by  the  people,  had  they 
even  suspected  the  use  that  would  be  made  of  it. 
How  long  the  public  will  continue  to  submit  to  this 
obvious  and  confessed  misapplication  of  this  provision 
of  the  Constitution  is  a  question.  It  is  a  very  foolish 
person,  however,  who  believes  or  even  hopes  that  it 
will  do  so  much  longer. 

The  number  of  statutes  nullified  by  the  courts  is 
large,  but  the  character  of  much  of  the  legislation 
thus  destroyed  is  more  significant  than  the  volume. 
In  131  U.  S.,  appendix  CCXXXV,  a  list  of  statutes 
is  given,  both  Federal  and  State,  held  imconstitutional 
by  the  Supreme  Court  of  the  United  States  up  to 
about  the  year  1887.  This  list  shows  that  up  to  the 
year  mentioned,   twenty  Federal  Statutes   and   one 


38  OUR  JUDICIAL  OLIGARCHY 

hundred  and  eighty-five  State  Statutes  were  held  in- 
valid by  the  Supreme  Court  of  the  United  States 
alone.  It  is  since  the  above  compilation  was  made, 
however,  that  the  greater  number  and  most  objection- 
able decisions  have  been  rendered  declaring  statutes 
unconstitutional.  These  decisions  have  usually  been 
made  by  a  divided  Court,  and  in  some  cases,  the 
change  of  a  single  vote  would  have  completely 
changed  the  result.  The  Legislation  thus  destroyed 
was  practically  all  carefully  devised  to  meet  existing 
and  recognized  evils,  and  enacted  in  response  to  an 
overwhelming  demand  of  the  people. 

One  of  the  subjects  uppermost  in  the  minds  of  the 
people  and  vitally  affecting  the  life  of  the  ISTation  is 
the  regulation  by  statute  of  the  charges  of  the  great 
public  service  corporations  of  the  country.  This  is 
not  the  place  to  dwell  upon  the  necessity  for  such 
legislation,  nor  upon  the  ability  and  patriotism  of 
the  men  engaged  in  devising  it.  l^o  more  important 
question  was  ever  presented  to  our  people  for  solution 
and  no  abler  men  have  ever  lived  in  this  country, 
than  those  who,  for  the  last  decade  have  been  trying 
to  bring  these  vast  aggregations  of  wealth  and  power 
imder  some  degree  of  control.  Yet  the  whole  body 
of  law  on  the  subject,  built  up  with  such  care,  has 
been  made  a  scrap  heap  of  broken  and  twisted  statutes 
by  the  decisions  of  the  Federal  Courts.^^ 

12  Ex  Parte  Young,  209  U.  S.  123  (1908),  sustaining  the 
action   of  the   lower    court   in   punishing   a    state    officer,   the 


WHY  THE  PEOPLE  DISTRUST        39 

That  the  railroads  and  other  public  service  cor- 
porations have,  in  many  instances,  yielded  voluntary 
obedience  to  the  statutes  regulating  their  rates  and 
charges,  more  strict  than  some  of  those  declared  un- 
constitutional by  the  courts,  shows  a  wholesome 
respect  for  the  popular  mil,  but  does  not  alter  the 

attorney-general  of  Minnesota,  for  contempt  by  reason  of  his 
official  acts  performed  in  obedience  to  the  statute  of  the  State 
regulating  the  rates  of  public  service  corporations,  such  ac- 
tion of  the  attorney-general  being  contrary  to  the  order  of 
an  inferior  federal  court  purporting  to  restrain  the  attorney- 
general  from  enforcing  the  statute  of  his  State.  (Dissenting 
opinion  by  Justice  Harlan.) 

Galveston,  Harrisburg  &  San  Antonio  Railway  Co.  v.  State 
of  Texas,  210  U.  S.  217  (1908),  holding  a  state  statute  pro- 
viding for  a  percentage  tax  on  the  gross  receipts  of  railroad 
companies  within  the  State  unconstitutional  and  void.  (Dis- 
senting opinion  by  Mr.  Justice  Harlan  with  whom  concurred 
Chief  Justice  Fuller  and  Mr.  Justice  White  and  Mr.  Justice 
McKenna.) 

Western  Union  Telegraph  Co.  v.  State  of  Kansas,  216  U. 
S.  1  (1909),  holding  a  statute  of  Kansas  void  providing  that 
before  a  foreign  corporation  should  have  authority  to  do 
business  in  the  State,  it  should  pay  to  the  State  treasurer 
for  the  benefit  of  the  school  fund,  a  fee  of  one-tenth  of  one 
per  cent,  upon  the  first  hundred  thousand  dollars  of  its  capi- 
tal stock,  and  a  smaller  percentage  upon  stock  in  excess  of 
the  amount.  (Dissenting  opinion  by  Mr.  Justice  Holmes  with 
whom  concurred  the  Chief  Justice  and  Mr.  Justice  McKenna.) 

Pullman  Co.  v.  Kansas,  216  U.  S.  56  (1909),  dissents  as 
above.  Also  opinion  in  David  C  Shepard  v.  Northern  Pacific 
Railway  Co.,  et  al,  Sanborn,  circuit  judge,  under  date  of 
April  8,  1911,  which  practically  destroyed  the  Miimesota  stat- 
ute providing  for  the  regulation  of  rates  of  public  service 
corporations. 


40  OUE  JUDICIAL  OLIGAECHY 

fact  tliat  the  decisions  mentioned,   and  others  like 
them,  if  they  are  accepted  as  final,  leave  the  great 
corporations    the    real    masters    of    the    field.     The 
rule  of  the  Minnesota  case    (Shepard  v.   Northern 
Pacific   Railway,   cited   in   the   note)    to  the   effect 
practically  that  a  railroad  is  entitled  to  a  net  income 
of  seven  per  cent,  on  the  value  of  its  properties,  in 
each  State,  such  value  to  be  fixed  according  to  a 
Eeferee's  estimate,  necessarily  based  principally  upon 
figures  furnished  by  the  railroad,  leaves  very  little 
of  rate  making  to  be  regulated  by  statute,  and  seri- 
ously cripples  the  taxing  power  of  the  State  as  well. 
The  finding  of  the  Referee  in  this  case   that  the 
reduction  of  rates  complained  of  must  result,  either 
in  unjust  discrimination  in  favor  of  the  Minnesota 
cities,  and  against  those  in  other  States  just  over  the 
border,  or  in  such  readjustment  of  Interstate  rates 
as  constituted  an  interference  with  Interstate  Com- 
merce can  be  made  and  sustained  in  practically  every 
case  where  any  reduction  of  rates  is  ordered  by  law. 
By  this  rule,  a  State's  power  to  make  any  general 
reduction   in   rates    is   practically    destroyed.     This 
case  in  principle,  at  least,  I  believe  is  in  conflict 
with  the  general  rule  of  State  courts. ^^ 

Scarcely  second  in  importance  to  the  regulation 

13  Independent  Tug  Line  v.  Lake  Superior  Lumber  Co.,  131 
N.  W.  409  (Wisconsin  supreme  court.  May,  1911;  see  also, 
proceedings  of  governors'  conference  respecting  this  case  re- 
ferred to  in  Chapter  I). 


WHY  THE  PEOPLE  DISTRUST        41 

of  the  rates  and  charges  of  railways,  telegraphs,  tele- 
phones, sleeping  cars  and  express  companies,  is  that 
of  holding  them  and  other  corporations  and  concerns 
to  a  proper  rule  of  accountability  for  injuries  re- 
ceived by  their  employes  in  the  course  of  their  em- 
ployment. The  hardships  of  the  ancient  rules  of 
the  common  law,  holding  that  employes  must  assume 
the  risks  of  their  employment,  and  that  employers 
sustain  no  liability  for  damage  resulting  from  the 
injury  or  death  of  an  employe,  where  his  own  negli- 
gence, however  slight,  or  the  negligence  of  another 
employe  caused  or  contributed  to  the  accident,  are 
too  well  recognized  to  require  comment.  Bad  as 
these  rules  were  when  applied  in  the  rude  times 
wherein  they  originated,  to  the  simple  machinery 
and  obvious  dangers  connected  therewith,  they  have 
become  intolerable  as  applied  by  our  courts  to  the 
dangerous,  complicated  and  complex  conditions  under 
which  millions  of  men,  women  and  children  in  this 
country  are  obliged  to  work.  To  meet  this  situation. 
Congress  finally,  after  much  consideration,  both  by 
the  executive  and  legislative  departments  of  the 
govemment,^^  in  1906  passed,  and  the  President 
approved,  what  was  know  as  the  "  Employers'  Lia- 
bility Act."  This  act  related  to  the  liability  of 
common  carriers  in  the  District  of  Columbia,  in  the 

14  See  President's  Annual  Message,  Dec.  6,  1904,  39  Cong. 
Rec.  11;  of  Dec.  5,  1905,  40  Cong.  Rec.  93. 


'42  OUR  JUDICIAL  OLIGARCHY 

Territories,  and  to  common  carriers  engaged  in  In- 
terstate Commerce  and  made  such  common  carriers, 
while  so  engaged,  liable  for  all  damages  resulting 
from  the  negligence  of  its  officers,  agents  or  em- 
ployes, or  by  reason  of  any  defects  resulting  from 
negligence  in  its  cars,  machinery,  road-bed,  etc.,  and 
also  provided  that  contributory  negligence  of  an  em- 
ploye should  not  bar  recovery  where  his  negligence 
was  slight,  and  that  of  the  employer  gross,  but  that 
damages  should  be  diminished  by  the  Jury  in  pro- 
portion to  the  amount  of  negligence  attributable  to 
the  employe.  This  statute,  the  Supreme  Court  of 
the  United  States,  by  a  vote  of  five  to  four,  held  un- 
constitutional.^' 

Mr.  Justice  Moody  dissented  in  one  of  the  ablest 
opinions  ever  written,  and  Mr.  Justice  Harlan,  with 
whom  concurred  Mr.  Justice  McKenna,  dissented, 
as  did  also  Mr.  Justice  Holmes.  The  opinion  of 
the  majority  of  the  Court  proceeds  upon  the  idea  that 
the  statute  in  question,  while  it  embraced  subjects 
which  Congress  had  authority  to  regulate,  also  in- 
cluded subjects  not  within  the  power  of  Congress  to 
regulate,  and  therefore  held  the  statute  void,  and  no 
recovery  was  allowed  to  the  particular  plaintiffs,  al- 
though as  I  understand  it,  it  was  admitted  that  the 
employment  in  which  they  were  engaged  at  the  time 

15  Employers'  Liability  Cases,  207  U.  S.  463,  dissenting 
opinions  504,  541. 


WHY  THE  PEOPLE  DISTRUST        43 

of  the  injury  was  within  the  authority  of  Congress 
to  regulate.^*' 

In  opening  his  dissenting  opinion,  Mr.  Justice 
Moody,  said: 

"  I  am  unable  to  agree  to  the  judgment  of  the  court. 
Under  ordinary  circumstances,  where  the  judgment 
rests  exclusively,  as  it  does  here,  upon  a  mere  interpre- 
tation of  the  words  of  a  law,  which  may  be  readily 
changed  by  the  law-making  branches  of  the  government, 
if  they  be  so  minded,  a  difference  of  opinion  may  well 
be  left  without  expression.  But  where  the  judgment  is 
a  judicial  condemnation  of  an  act  of  a  coordinate  branch 
of  our  government  it  is  so  grave  a  step  that  no  member 
of  the  court  can  escape  his  own  responsibility,  or  be 
justified  in  suppressing  his  own  views,  if  unhappily  they 
have  not  found  expression  in  those  of  his  associates. 
Moved  by  this  consideration,  and  solicitous  to  maintain 
what  seem  to  me  the  lawful  powers  of  the  Nation,  I  have 
no  doubt  of  my  duty  to  disclose  fully  the  opinions 
which,  to  my  regret,  differ  in  some  respects  from  those 
of  some  of  my  brethren." 

Can  it  be  that  there  was  not  even  a  "  rational 
doubt "  of  the  constitutionality  of  this  statute,  when 
the  four  great  judges,  Harlan,  Moody,  Holmes  and 

18  Docket  titles  are  Damsell  Howard,  Administratrix  of 
Will  Howard,  deceased,  v.  Illinois  Cent.  R.  R.  Co.  and  the 
Yazoo  and  Mississippi  Valley  R.  R.  Co.;  N.  C.  Brooks,  Ad- 
ministratrix of  Morris  S.  Brooks,  deceased,  v.  Southern  Pa- 
cific Co. 


'44  OUR  JUDICIAL  OLIGAECHY 

!McKenna  asserted,  in  tBe  most  vigorous  manner, 
and  with  all  their  wealth  of  learning,  that  the  statute 
and  the  Constitution  were  in  perfect  harmony,  and  not 
in  any  respect  conflicting?  Can  it  be  that  because 
the  statute  contained  opinions  concerning  the  rela- 
tions between  employers  and  employes  "  novel  and 
even  shocking  "  to  some  members  of  the  Court,  that 
the  judgment  of  the  majority  of  the  Court  was  there- 
by influenced  or  determined  ? 

That  Congress  was  finally  able  to  pass  a  law  relat- 
ing to  the  liability  of  employers  engaged  in  inter- 
state commerce,  which  met  the  approval  of  the  Court 
(Mondou  V.  K  Y.,  etc.,  Ry.  Co.,  U.  S.  Sup.  Ct., 
Jan.  15,  1912),  is  not  material  to  the  present  dis- 
cussion, except  as  it  may  indicate  a  changed  attitude 
of  the  Court  in  deciding  whether  a  statute  is  consti- 
tutional or  not. 

Shortly  after  the  decision  destroying  the  "  Em- 
ployers' Liability  Act,"  the  Supreme  Court  of  the 
United  States  also  struck  down  the  compulsory 
arbitration  law,  reversing  by  a  divided  Court  the 
most  able  decision  of  the  Lower  Court,  holding  the 
law  constitutional.-^'^  This  law  was  passed  as  the  re- 
sult of  the  great  railroad  strike  at  Chicago  in  1894, 
and  was  intended  to  prevent  such  unfortunate  oc- 
currence in  the  future  by  providing  for  the  arbitra- 
tion of  differences  between  corporations  engaged  in 
interstate   commerce   and   their  employes,   and   pro- 

"  Adair  v.  U.  S.,  208  U.  S.  161,  152  Fed.  Rep.  737. 


WHY  THE  PEOPLE  DISTKUST        45 

hiblting  the  discharge  of  the  employes  merely  because 
they  belonged  to  Labor  Unions.  (See  p.  164,  Adair 
V.  U.  S.  208  U.  S.)  Justices  McKenna  and  Holmes 
dissented  and  Mr.  Justice  Moody  took  no  part  in 
the  decision  of  the  case. 

State  courts  of  last  resort  have  not  always  been 
more  kind  to  statutory  changes  in  the  common  law, 
relating  to  employer  and  employe  than  the  Federal 
courts,  and  in  March,  1911,  the  Court  of  Appeals 
of  New  York,  in  an  elaborate  opinion  held  the  work- 
ingmen's  compensation  law  of  that  State  unconstitu- 
tional, although  the  lower  courts  had  found  no 
reason  to  doubt  its  constitutionality.^^ 

Workmen's  Compensation  laws,  during  the  year 
1911,  were  passed  in  the  States  of  California,  Hli- 
nois,  Kansas,  Massachusetts,  ISTevada,  N^ew  Jersey, 
Ohio,  Vermont,  and  Wisconsin.  These  laws  are  all 
of  the  same  general  character,  and  are  permissive,  or 
optional;  that  is,  they  leave  it  to  the  employer  and 
employe  to  determine  whether  the  provisions  of  the 
law  will  be  accepted  or  not.  But  as  an  inducement 
to  employers  to  accept  the  terms  of  the  law,  it  is 

18  Ives  V.  South  Buffalo  Railway  Co.,  201  N.  Y.  271,  re- 
versing 140  App.  Div.  921.  The  correctness  of  the  decision  in 
the  Ives  case  is  denied  by  the  Supreme  Court  of  Washington, 
in  a  decision  handed  down  September  27,  1911,  upholding  the 
Workmen's  Compensation  Law  of  that  state,  which  differs  in 
no  substantial  particular  as  to  the  constitutional  question  in- 
volved from  the  law  which  the  New  York  Court  of  Appeals  de- 
clared unconstitutional.     State  v.  Clausen,  117  Pac.  Rep.  1101. 


^6  OUR  JUDICIAL  OLIGARCHY 

uniformly  provided,  that  the  defenses  of  "  assumed 
risk  "  and  the  "  fellow  servant  rule  "  are  abolished, 
and  in  some  cases  the  defense  of  contributory  negli- 
gence much  limited.  If  the  employer  does  not  choose 
to  accept  the  privileges  of  the  law,  he  loses  the  above 
defenses  when  sued  by  the  employe  in  a  common  law 
action.  The  administration  of  the  law  is  placed  in 
the  hands  of  a  board  or  commission.  These  laws 
provide  a  comprehensive  scheme  by  which,  after  the 
parties  have  elected  to  accept  the  provisions  thereof, 
any  substantial  injury  received  by  the  employe  in 
the  course  of  or  incidental  to  his  employment,  ex- 
cept those  caused  by  his  own  wilful  misconduct,  shall 
be  comf)ensated  for  by  the  employer,  according  to 
certain  definite  rules  which  are  to  be  administered  by 
the  board  or  commission  above  mentioned.  The 
rules  of  procedure  are  definitely  laid  down ;  both  par- 
ties are  given  notice  of  hearings;  the  amount  to  be 
paid  in  case  of  death  and  in  case  of  certain  described 
injuries,  is  provided  for.  The  whole  proceeding  is 
simple,  expeditious  and  inexpensive.  The  opinion 
of  the  Wisconsin  Supreme  Court,  rendered  Novem- 
ber 14th,  1911  (133  Northwestern  Reporter,  209), 
upholding  the  law  in  that  State,  is  elaborate,  and  con- 
stitutes a  most  valuable  contribution  to  the  subject. 
In  the  main  opinion  rendered  by  Winslow,  C.  J.,  it 
is  said: 

"  It  is  matter  of  common  knowledge  that  this  law 
forms  the  legislative  response  to  an  emphatic,  if  not 


WHY  THE  PEOPLE  DISTRUST        47 

a  peremptory,  public  demand.  It  was  admitted  by  law- 
yers, as  well  as  laymen,  that  the  personal  injury  ac- 
tion brought  by  the  employe  against  his  emplo3^er  to 
recover  damages  for  injuries  sustained  by  reason  of  the 
negligence  of  the  employer  had  wholly  failed  to  meet 
or  remedy  a  great  economic  and  social  problem  which 
modern  industrialism  has  forced  upon  us,  namely,  the 
problem  of  who  shall  make  pecuniary  recompense  for 
the  toll  of  suffering  and  death  which  that  industrialism 
levies  and  must  continue  to  levy  upon  the  civilized 
world.  This  problem  is  distinctly  a  modern  problem. 
In  the  days  of  manual  labor,  the  small  shop,  with  few 
employes,  and  the  stage  coach,  there  was  no  such  prob- 
lem, or,  if  there  was,  it  was  almost  negligible.  Acci- 
dents there  were  in  those  days,  and  distressing  ones ;  but 
they  were  relatively  few,  and  the  employe  who  exercised 
any  reasonable  degree  of  care  was  comparatively  secure 
from  injury.  There  was  no  army  of  injured  and  dy- 
ing, with  constantly  swelling  ranks  marching  with  halt- 
ing step  and  dimming  eyes  to  the  great  hereafter.  This 
is  what  we  have  with  us  now,  thanks  to  the  wonderful 
material  progress  of  our  age,  and  this  is  what  we  shall 
have  with  us  for  many  a  day  to  come.  Legislate  as  we 
may  in  the  line  of  stringent  requirements  for  safety 
devices  or  the  abolition  of  employers'  common-law  de- 
fenses, the  army  of  the  injured  will  still  increase,  and 
the  price  of  our  manufacturing  greatness  will  still  have 
to  be  paid  in  human  blood  and  tears.  To  speak  of  the 
common-law  personal  injury  action  as  a  remedy  for  this 
problem  is  to  jest  with  serious  subjects,  to  give  a  stone 
to  one  who  asks  for  bread.  The  terrible  economic  waste, 
the  overwhelming  temptation  to  the  commission  of  per- 


48  OUE  JUDICIAL  OLIGARCHY 

jury,  and  the  relatively  small  proportion  of  the  sums 
recovered  which  comes  to  the  injured  parties  in  such 
actions,  condemn  them  as  wholly  inadequate  to  meet  the 
difficulty. 

"  In  approaching  the  consideration  of  the  present  law, 
we  must  bear  in  mind  the  well-established  principle 
that  it  must  be  sustained,  unless  it  6e  clear  beyond  rea- 
sonable question  that  it  violates  some  constitutional 
limitation  or  prohibition.  ...  A  constitution  is  a 
very  human  document,  and  must  embody  with  greater 
or  less  fidelity  the  spirit  of  the  time  of  its  adoption. 
It  will  be  framed  to  meet  the  problems  and  difficulties 
which  face  the  men  who  make  it,  and  it  will  generally 
crystallize  with  more  or  less  fidelity  the  political,  social, 
and  economic  propositions  which  are  considered  irre- 
futable, if  not  actually  inspired,  by  the  philosophers 
and  legislators  of  the  time;  but  the  difficulty  is  that, 
while  the  Constitution  is  fixed  or  very  hard  to  change, 
the  conditions  and  problems  surrounding  the  people,  as 
well  as  their  ideals,  are  constantly  changing.  The  po- 
litical or  philosophical  aphorism  of  one  generation  is 
doubted  by  the  next,  and  entirely  discarded  by  the  third. 
The  race  moves  forward  constantly,  and  no  Canute  can 
stay  its  progress. 

"  Constitutional  commands  and  prohibitions,  either 
distinctly  laid  down  in  express  words  or  necessarily  im- 
plied from  general  words,  must  be  obeyed,  and  implicitly 
obeyed,  so  long  as  they  remain  unamended  or  unre- 
pealed. Any  other  course  on  the  part  of  either  legis- 
lator or  judge  constitutes  violation  of  his  oath  of  office; 
but  when  there  is  no  such  express  command  or  prohibi- 


WHY  THE  PEOPLE  DISTRUST        49 

tion,  but  only  general  language,  or  a  general  policy 
drawn  from  the  four  corners  of  the  instrument,  what 
shall  be  said  about  this?  By  what  standards  is  this 
general  language  or  general  policy  to  be  interpreted  and 
applied  to  present  day  people  and  conditions?  When 
an  eighteenth  century  constitution  forms  the  charter 
of  liberty  of  a  twentieth  century  government,  must  its 
general  provisions  be  construed  and  interpreted  by  an 
eighteenth  century  mind  in  the  light  of  eighteenth  cen- 
tury conditions  and  ideals  ?  Clearly  not.  This  were  to 
command  the  race  to  halt  in  its  progress,  to  stretch  the 
state  upon  a  veritable  bed  of  Procrustes." 

I  close  "what  I  have  to  say  on  this  particular  point 
with  a  reference  to  the  well-known  income  tax  cases 
wherein,  by  the  change  in  the  vote  of  a  single  mem- 
ber of  the  Supreme  Court  of  the  United  States,  the 
government  was  deprived  of  the  power  conceded  to 
it  for  a  hundred  years,  to  raise  revenue  by  a  tax  upon 
the  large  incomes  of  the  rich.^^ 

While  the  facts  of  these  cases  are  generally  well 
understood,  it  is  j)erhaps  not  amiss  to  restate  them 
here. 

In  August,  1894,  Congress  passed  a  statute  (28 
Stat.  509  c.  349)  which  provided  in  substance  for  a 
tax  of  two  per  centum  on  net  incomes  above  four 
thousand  dollars.     Shortly  after  the  passage  of  the 

"Pollock  V.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429, 
654;  Pollock  v.  Farmers'  Loan  &  Trust  Co.  (re-hearing), 
158  U.  S.  601,  715. 


50  OUE  JUDICIAL  OLIGAECHT 

act,  Charles  Pollock,  a  citizen  of  Massachusetts, 
brought  an  action  in  the  Federal  Court,  alleging  that 
he  was  a  stockholder  in  the  Farmers'  Loan  &  Trust 
Company,  a  corporation,  of  the  State  of  New  York, 
and  that  said  company  was  about  to  pay  the  tax  above 
mentioned,  as  required  by  the  statute,  and  prayed 
that  the  payment  of  the  tax  be  enjoined.  It  is 
obvious  from  the  record  that  the  controversy  pre- 
sented was  not  a  real  one,  but  that  the  action  was 
brought  with  the  approval  of  the  defendant,  and  for 
the  purpose  merely  of  procuring  a  decision  on  the 
constitutionality  of  the  law. 

At  the  time  of  the  first  argument  in  the  Supreme 
Court,  which  occurred  in  March,  1895,  Mr.  Justice 
Jackson  was  ill  and  took  no  part  in  the  case.  The 
remainder  of  the  Court,  consisting  of  eight  members, 
was  equally  divided  on  all  questions  concerning  the 
constitutionality  of  the  act  except  the  provision  im- 
posing a  tax  upon  rents  and  incomes  from  real  estate. 
As  the  Lower  Court  had  sustained  the  constitution- 
ality of  the  act,  the  effect  of  this  decision  was  to 
uphold  the  law,  except  as  to  the  single  item  of  rents 
and  incomes  from  real  estate,  and  in  respect  to  this 
tax,  the  court,  by  a  bare  majority  ^'^  held  it  uncon- 
stitutional. 

At  the  re-argument,  Mr.  Justice  Jackson  had  so 

20  See  conclusion  of  Chief  Justice  Fuller's  opinion,  157  U. 
S.,  p.  586,  and  beginning  of  dissenting  opinion  of  Mr.  Justice 
Harlan,  158  U.  S.  638. 


WHY  THE  PEOPLE  DISTKUST        51 

far  recovered  his  health,  as  to  participate  therein, 
and  wrote  vigorously  in  behalf  of  sustaining  the  law, 
as  did  also  Justices  Harlan,  Brown  and  White.  One 
of  the  judges,  however,  who  had  previously  voted  to 
sustain  the  law,  changed  his  vote  and  M^hile  the  record 
of  the  cases  contains  no  word  from  this  Justice  ex- 
plaining the  reasons  for  his  action,  the  result  was  the 
total  annihilation  of  the  law. 

The  considerations  which  influenced  the  views  of 
the  majority  of  the  Court  are  well  stated  by  Mr. 
Justice  Eield  in  his  opinion,  where  he  said:  ^^ 

"  The  present  assault  upon  capital  is  but  the  begin- 
ning. It  will  be  but  the  stepping  stone  to  others,  larger 
and  more  sweeping,  till  our  political  contests  will  be- 
come a  war  of  the  poor  against  the  rich;  a  war  con- 
stantly growing  in  intensity  and  bitterness. —  If  the 
purely  arbitrary  limitation  of  four  thousand  dollars  in 
the  present  law  can  be  sustained,  none  having  less  than 
that  amount  of  income  being  assessed,  or  taxed  for  the 
support  of  the  government,  the  limitation  of  future 
Congresses  may  be  fixed  at  a  much  larger  sum,  at  five 
or  ten  or  twenty  thousand  dollars,  parties  possessing  an 
income  of  that  amount  alone  being  bound  to  bear  the 
burdens  of  government;  or  the  limitation  may  be  desig- 
nated at  such  an  amount  as  a  Board  of  *  Walking  Dele- 
gates '  may  deem  necessary." 

Was  it  because  the  majority  of  the  Court  regarded 
this  law  as  contrary  to  some  clause  of  the  Constitu.- 

21 157  U.  S.,  p.  607. 


52  OUE  JUDICIAL  OLIGAECHY 

tion  or  because  they  regarded  it  as  an  "  assault  upon 
capital "  that  they  destroyed  it  ? 
Mr.  Justice  Jackson  said :  ^- 

"  The  decision  (of  the  majority  of  the  court)  dis- 
regards the  well  established  canon  of  construction  to 
which  I  have  referred  that  an  act  passed  by  a  coordinate 
branch  of  the  government  has  every  presumption  in  its 
favor,  and  should  never  be  declared  invalid  by  the 
courts  unless  its  repugnancy  to  the  Constitution  is 
clear  beyond  all  reasonable  doubt.  It  is  not  a  matter 
of  conjecture ;  it  is  the  established  principle  that  it  must 
be  clear  beyond  a  reasonable  doubt.  I  cannot  see,  in 
view  of  the  past,  how  this  case  can  be  said  to  be  free 
of  doubt.  Again,  the  decision  not  only  takes  from  Con- 
gress its  rightful  power  of  fixing  the  rate  of  taxation, 
but  substitutes  a  rule  incapable  of  application  without 
producing  the  most  monstrous  inequality  and  injustice 
between  citizens  residing  in  different  sections  of  their 
common  country,  such  as  the  framers  of  the  Constitu- 
tion never  could  have  contemplated,  such  as  no  free  and 
enlightened  people  can  ever  possibly  sanction  or  ap- 
prove. The  practical  operation  of  the  decision  is  not 
only  to  disregard  the  great  principles  of  equality  in  tax- 
ation, but  the  further  principle  that  in  the  imposition 
of  taxes  for  the  benefit  of  the  government,  the  burdens 
thereof  should  be  imposed  upon  those  having  most 
ability  to  bear  them.  This  decision  in  effect  works  out 
a  directly  opposite  result  in  relieving  the  citizens  having 
the  greater  ability,  while  the  burdens  of  taxation  are 

22  158  U.  S.,  p.  705. 


WHY  THE  PEOPLE  DISTRUST         53 

made  to  fall  most  heavily  and  oppressively  upon  those 
having  the  least  ability.  .  .  .  Considered  in  all  its 
bearings,  this  decision  is,  in  my  judgment,  the  most 
disastrous  blow  ever  struck  at  the  Constitutional  power 
of  Congress/' 

Mr.  Justice  Browii  said :  ^^ 

"  While  I  have  no  doubt  that  Congress  will  find  some 
means  of  surmounting  the  present  crisis,  my  fear  is 
that  in  some  moment  of  national  peril,  this  decision  will 
rise  up  to  frustrate  its  will  and  paralyze  its  arm.  I 
hope  it  may  not  prove  the  first  step  toward  the  despot- 
ism of  wealth.  As  I  cannot  escape  the  conviction  that 
the  decision  of  the  court  in  this  great  case  is  fraught 
with  immeasurable  danger  to  the  future  of  the  country, 
and  that  it  approaches  the  proportions  of  a  national 
calamity,  I  feel  it  a  duty  to  enter  my  protest  against  it." 

Mr.  Justice  Harlan  said :  -^ 

"It  nevertheless  results  that  those  parts  of  the 
(Wilson)  act  that  survive  the  new  theory  of  the  Con- 
stitution evolved  by  these  cases,  are  those  imposing 
burdens  upon  the  great  body  of  the  American  people 
who  derive  no  rents  from  real  estate,  and  who  are  not 
so  fortunate  as  to  own  invested  personal  property,  such 
as  the  bonds  or  stocks  of  corporations,  that  hold  within 
their  control  almost  the  entire  business  of  the  country. 
Such  a  result  is  one  to  be  deeply  deplored.  It  cannot 
be  regarded  otherwise  than  as  a  disaster  to  the  country. 

28  158  U.  S.,  p.  G95.  24  Id.,  pp.  G84-5. 


54:'  OUR  JUDICIAL  OLIGAECHY 

The  decree  now  passed  dislocates  —  principally,  for 
reasons  of  an  economic  nature  —  a  sovereign  power  ex- 
pressly granted  to  the  general  government  and  long 
recognized  and  fully  established  by  judicial  decisions 
and  legislative  actions.  It  so  interprets  constitutional 
provisions,  originally  designed  to  protect  the  slave  prop- 
erty against  oppressive  taxation,  as  to  give  privileges 
and  immunities  never  contemplated  by  the  founders  of 
the  government.  .  .  .  The  serious  aspect  of  the  pres- 
ent decision  is  that  by  a  new  interpretation  of  the  Con- 
stitution, it  so  ties  the  hands  of  the  legislative  branch 
of  the  government,  that  without  an  amendment  of  that 
instrument,  or  unless  this  court,  at  some  future  time, 
should  return  to  the  old  theory  of  the  Constitution, 
Congress  cannot  subject  to  taxation  —  however  great 
the  needs  or  pressing  the  necessities  of  the  government 
—  either  the  invested  personal  property  of  the  country, 
bonds,  stocks  and  investments  of  all  kinds,  or  the  in- 
come arising  from  the  renting  of  real  estate,  or  from 
the  yield  of  personal  property,  except  by  a  grossly  un- 
equal and  unjust  rule  of  apportionment  among  the 
States.  Thus,  undue  and  disproportioned  burdens  are 
placed  upon  the  many,  while  the  few  .  .  .  are  per- 
mitted to  evade  their  share  of  responsibility  for  the 
support  of  the  government  ordained  for  the  protection 
of  the  rights  of  all.  I  cannot  assent  to  an  interpreta- 
tion of  the  Constitution  that  impairs  and  cripples  the 
just  powers  of  the  National  government  in  the  essential 
matter  of  taxation,  and  at  the  same  time  discriminates 
against  the  greater  part  of  the  people  of  our 
country.'' 


WHY  THE  PEOPLE  DISTRUST        55 

Since  this  case  was  decided,  seventeen  years  ago, 
the  people,  with  remarkable  but  ever  diminishing 
patience,  have  been  seeking  to  so  amend  their  Con- 
stitution as  to  escape  the  injustice  thrust  upon  them 
by  the  five  men  constituting  the  majority  of  the  Su- 
preme Court,  when  the  Income  Tax  cases  were  de- 
cided, yirtually  the  change  of  the  vote  of  one 
man,  as  we  have  seen,  changed  the  result.  The  Hon. 
Walter  Clark,  Chief  Justice  of  the  Supreme  Court 
of  ISTorth  Carolina,  discussing  this  decision  in  1906 
said:  -^ 

"  One  man  nullified  the  action  of  Congress  and  the 
President  and  seventy-five  millions  of  living  people  and 
in  thirteen  years  since  has  taxed  the  property  and  labor 
of  the  country  by  his  sole  vote,  one  billion,  three  mil- 
lion dollars,  which  Congress  in  compliance  with  the 
public  will,  and  relying  upon  previous  decisions  of  the 
court,  had  decreed  should  be  paid  out  of  the  excessive 
incomes  of  the  rich." 

Whether  we  agree  with  the  views  of  the  majority 
or  minority  of  the  Supreme  Court  in  these  eases,  or 
with  the  member  of  it  who  voted  on  both  sides  of 
the  question,  the  quotations  above  set  forth  show 
that  the  question  really  in  the  minds  of  the  judges 
was  the  expediency  or  propriety  of  the  income  tax 
law,  and  not  whether  it  conflicted  with  any  part  of 

25  Address  before  Law  Department  of  University  of  Pennsyl- 
vania in  1906,  printed  in  pamphlet  form. 


56  OUR  JUDICIAL  OLIGAECHY 

the  Constitution.  Since  members  of  the  Supreme 
Court  have  declared  that  not  only  the  income  tax 
law,  but  the  other  great  statutes  considered  above 
were  held  invalid,  not  because  they  were  plainly  in 
conflict  with  the  Constitution,  but  because  they  em- 
body economic  theories  to  which  a  majority  of  the 
court  were  opposed,  we  may  fairly  accept  as  settled 
the  proposition  that  the  courts  do  invalidate  statutes 
merely  because  they  disapprove  the  policy  embodied 
in  such  statutes. 


CHAPTER  IV 

WHY   THE    PEOPLE  DISTRUST   THE   COURTS 

(C)  By  reading  their  own  view  into  statutes  to  the  exclu- 
sion of  the  Legislative  intention,  the  members  of  the 
judiciary,  in  eflfect,  become  the  law-making  branch  of 
the  Government. 

CLOSELY  allied  to  the  subject  last  discussed  is 
the  charge  that  the  courts,  having  learned  to 
destroy  statutes  of  which  they  disapproved,  by  hold- 
ing them  to  be  unconstitutional,  have  come  to  in- 
terpret statutes  admittedly  constitutional,  so  as  to 
make  them  express  the  views  of  the  judges  constitut- 
ing the  Court,  even  if  thereby  they  disregard  the 
intention  of  the  law-making  branch  of  the  govern- 
ment. 

That  this  charge  rests  upon  a  substantial  basis  of 
fact  is  well  known  to  every  practicing  lawyer.  Every 
lawyer  of  large  experience,  can  readily  add  from 
his  own  practice  and  observation,  many  cases,  to  the 
few  I  shall  cite,  in  proof  of  the  charge  here  con- 
sidered. Indeed,  it  is  rather  to  point  out  the  evils 
that  result  from  this  practice  of  the  courts  than  to 
prove  its  existence  that  I  discuss  the  subject  at  all. 

While  the  framers  of  our  Constitution  and  the 
57 


58  OUR  JUDICIAL  OLIGAECHY 

founders  of  this  government  disagreed  npon  many 
things,  they  were  all  agreed,  from  Hamilton,  repre- 
senting one  extreme  tbonght,  to  Jefferson,  represent- 
ing the  other,  that  the  legislative  and  judicial 
branches  of  the  government  must  be  kept  separate. 
It  is  the  essence  of  tyranny  to  combine  in  one  in- 
dividual, power  to  make  laws  and  also  power  to  de- 
termine their  meaning  and  application.  Under  such 
a  system,  general  rules  of  law,  which  all  must  obey 
would  cease  to  exist,  and  we  would  have  what  Mr. 
Justice  Lurton  of  the  United  States  Supreme  Court 
recently  declared  to  be  "  A  Government  of  Men  "  in- 
stead of  "  A  Government  of  Law."  ^  It  is  true,  the 
learned  Justice  says  that  he  sees  nothing  in  the 
history  of  the  judiciary  which  "  supports  an  ex- 
pectation that  the  function  of  interpreting  will  be 
tortured  into  an  exercise  of  legislative  power."  He 
further  says : 

"  The  rules  of  construction  are  plain  and  simple  of 
application.  They  are  in  substance  identical,  whether 
the  instrument  for  interpretation  be  a  statute  or  a  con- 
tract." 2 

Judge  Lurton,  however,  agrees  that  nothing  but 
disaster  could  result  from  the  exercise  by  the 
Judiciary  of  any  sort  of  legislative  power.     Bad  as 

1  North  American  Review,  Vol.  CXCIII,  p.  24. 

2  "  A  Government  of  Law  or  a  Government  of  Men,"  by  Mr. 
Justice  Lurton,  Jan.,  1911,  issue  of  North  American  Review, 
Vol.  CXCIII,  p.  24. 


WBY  THE  PEOPLE  DISTEUST        59 

all  admit  it  would  be  to  combine  in  one  person 
legislative  and  judicial  power,  wlien  done  constitu- 
tionally or  in  a  lawful  manner,  it  is  infinitely  worse 
if  legislative  power  is  in  fact  exercised  by  the  Judi- 
ciary, but  without  any  right  so  to  do.  In  such  case, 
to  the  baneful  results  that  must  always  follow  the 
exercise  of  legislative  power  by  a  judicial  officer,  are 
added  those  that  ever  accompany  the  offense  of 
usurpation ;  and  the  people  will  soon  come  to  distrust 
the  motive  of  the  Court,  where  otherwise  they  would 
only  condemn  its  act. 

Mr.  Justice  Lurton  in  the  paragraph  quoted  above 
from  his  article  in  the  North  American  Review  re- 
fers to  "  the  rules  of  construction  "  which  the  courts 
apply  in  the  interpretation  of  statutes  as  "  plain  and 
simple  of  application."  If  the  courts  refuse  to  give 
effect  to  the  intention  of  the  law-making  branch  of  the 
government,  as  expressed  in  a  statute,  it  does  not 
help  the  case  to  say  that  this  was  done  according  to 
"  rules  of  Construction."  Eor  example,  it  is  a  fa- 
miliar rule  of  construction  that  the  courts  will  not 
give  effect  to  a  statute  changing  the  common  law 
unless  the  legislative  intention  is  expressed  in  "  un- 
mistakable terms."  As  there  is  a  great  body  of 
statute  law,  the  purpose  of  which  is  to  change  the 
hardships,  injustice  and  cruelties  of  the  common  law, 
the  result  is  that  under  cover  of  this  rule,  much  of 
this  beneficent  legislation  has  failed  of  its  purpose, 
for  it  is  practically  impossible  to  frame  a  statute,  so 


60  OITE  JUDICIAL  OLIGAECHY 

that  its  meaning  is  "  unmistakable  "  to  one  who  has 
no  sympathy  with  its  purpose.  A  few  illustrations 
will  serve  to  make  this  clearer  than  any  amount  of 
discussion. 

A  few  years  ago,  Congress  passed  for  the  District 
of  Columbia,  a  law  relieving  married  women  from 
their  common  law  disabilities.  The  statute,  among 
other  things  provided: 

"Married  women  shall  have  power  to  engage  in  any 
business  and  to  contract,  whether  engaged  in  business 
or  not,  and  to  sue  separately  upon  their  contracts,  and 
also  to  sue  separately  for  the  recovery,  security  or  pro- 
tection of  their  property,  and  for  torts  committed  against 
them  as  fully  and  freely  as  if  they  were  unmarried." 

A  man  having  committed  a  particularly  brutal 
assault  upon  his  wife  (whether  they  were  living  to- 
gether or  not  does  not  appear),  she  brought  an  action 
against  him  to  recover  damages  for  the  assault.  Her 
right  to  maintain  such  an  action  was  rested  upon  the 
provisions  of  the  statute  above  quoted  which  gave 
to  married  women  the  right  to  recover  for  an  assault 
committed  upon  them  as  fully  and  freely  as  if  they 
were  unmarried.  When  the  case  finally  reached  the 
Supreme  Court  of  the  United  States,  however,  as  it 
did  in  1910,  that  Court  decided  by  a  majority  vote 
that  the  statute  gave  plaintiff  no  right  of  action.^ 
The  majority  opinion  refers  to  the  fact  that  at  com- 

3  Thompson  v.  Thompson,  218  U.  S.  611. 


WHY  THE  PEOPLE  DISTRUST        61 

mon  law,  the  wife  could  not  maintain  an  action 
against  her  husband  nor  indeed  maintain  any  action, 
unless  she  joined  her  husband,  and  that  her  identity 
in  law  was  practically  merged  in  his.  It  is  then 
said: 

"  It  may  be  presumed  that  the  Legislators  who  en- 
acted this  statute  were  familiar  with  the  long  estab- 
lished policy  of  the  common  law  and  were  not  unmind- 
ful of  the  radical  changes  in  the  policy  of  centuries, 
which  such  legislation,  as  is  here  suggested,  would  bring 
about.  Conceding  it  to  be  within  the  power  of  the 
legislature  to  make  this  alteration  in  the  law  if  it  saw 
fit  to  do  so,  nevertheless  such  radical  and  far-reaching 
changes  should  only  be  wrought  by  language  so  clear 
and  plain  as  to  be  unmistakable  evidence  of  the  legis- 
lative intention." 

Mr.  Justice  Harlan,  with  whom  concurred  Justices 
Holmes  and  Hughes,  dissented.  Mr.  Justice  Harlan, 
in  his  dissenting  opinion,  referring  to  this  statutory 
provision,  said: 

"  In  my  opinion,  these  statutory  provisions,  properly 
construed,  embrace  such  a  case  as  the  present  one.  If 
the  words  used  by  Congress  lead  to  such  a  result,  and 
if,  as  suggested,  that  result  be  undesirable  on  grounds 
of  public  policy,  it  is  not  within  the  functions  of  the 
Court  to  ward  off  the  dangers  feared  or  the  evils  threat- 
ened simply  by  judicial  construction  that  will  defeat 
the  plainly  expressed  will  of  the  legislative  department. 
With  the  mere  policy,  expediency,  or  justice  of  legisla- 


62  OUR  JUDICIAL  OLIGAECHY 

tion,  tlie  Courts,  in  our  system  of  government,  have  no 
rightful  concern.  Their  duty  is  only  to  declare  what 
the  law  is,  not  what,  in  their  Judgment,  it  ought  to  be 
—  leaving  the  responsibility  for  legislation  where  it 
exclusively  belongs,  that  is  with  the  legislative  depart- 
ment, so  long  as  it  keeps  within  Constitutional  limits. 
Now,  there  is  not  here,  as  I  think,  any  room  whatever 
for  mere  construction, —  so  explicit  are  the  words  of 
Congress." 

Again  referring  to  the  decision  of  the  majority  of 
the  Court,  he  says: 

"  The  judgment  just  rendered  will  have,  as  I  think, 
the  effect  to  defeat  the  clearly  expressed  will  of  the 
Legislature  by  a  construction  of  its  words  that  cannot 
be  reconciled  with  their  ordinary  meaning." 

It  is  true  that  of  the  seven  members  constituting 
the  Court  when  this  decision  was  rendered,  Mr. 
Justice  Lurton  stood  with  the  majority  but  it  will  ap- 
pear, I  think,  to  the  mind  not  fearful  of  the  "  radical 
changes  in  the  policy  of  centuries  "  which  this  statute 
brought  about,  that  the  minority  and  not  the  majority 
of  the  Court  followed  the  "  plain  and  simple  "  rules 
of  construction.  The  logical  result  of  this  decision 
must  be  to  deny  the  wife  the  right  to  sue  the  hus- 
band on  contract,  as  well  as  in  tort,  and  thus  leave 
her  where  she  was  at  common  law,  so  far  as  any  in- 
jury to  her  personal  or  property  rights  by  her  hus- 
band is  concerned. 


WHY  THE  PEOPLE  DISTPUST        63 

In  the  note,  I  give  a  few  out  of  hundreds  of  de- 
cisions that  might  be  cited  ilhistrating  how  difficult 
the  courts  have  made  it  to  change  by  statute  the 
common  law  rules  applicable  to  employer  and  em- 
ploye in  such  manner  as  to  give  the  latter  substantial 
rights  against  the  former  which  he  did  not  possess  at 
common  law.* 

Two  recent  decisions  of  the  ISTew  York  Court  of  Ap- 
peals well  illustrate  the  subject  under  consideration. 
One  of  the  abuses  from  which  the  people  of  Xew  York 
City  suffered  for  a  long  time  was  the  refusal  of  the 
various  corporations  owning  or  operating  street  rail- 
roads therein  to  give  transfers  to  passengers  from 
one  line  to  another.  While  by  a  system  of  leases  and 
contracts  the  street  railroads  were  under  one  manage- 
ment and  for  all  practical  purposes,  were  one  con- 

4Gombert  v.  McKay,  201  N.  Y.  27  (decided  Feb.  7,  1911), 
holding  that  because  the  section  of  the  New  York  labor  law 
there  considered  did  not  in  terms  deny  to  the  employer  the 
defenses  of  assumed  risk  and  contributory  negligence  that 
such  defenses  were  available  and  plaintiff  could  not  recover; 
Ives  V.  South  Buffalo  Railway  Co.,  201  N.  Y.  272  (decided 
March  24,  1911),  holding  that  because  the  section  of  the 
New  York  labor  law  there  in  question  did  in  terms  make 
the  employer  liable  without  regard  to  negligence  and  as- 
sumption of  risk,  the  statute  was  unconstitutional  and  the 
plaintiff  could  not  recover;  Kellogg  v.  New  York  Edison  Co., 
120  App.  Div.  410  (N.  Y.)  ;  Milligan  v.  Clayville  Knitting 
Co.,  137  App.  Div.  383  (N.  Y.)  ;  Heiser  v.  Cincinnati,  etc.,  Co., 
141  A.  D.  (N.  Y.)  400;  McGowan  v.  New  York  Contracting 
Co.,  143  A.  D.  (N.  Y.)  1;  Kimmerle  v.  Carey  Printing  Co., 
144  A.  D.  (N.  Y.)  714. 


U  OUR  JUDICIAL  OLIGAECHY 

cem,  yet  as  sections  of  the  roads  were  owned  by 
separate  corporations,  separate  fares  were  extorted 
from  passengers  where  they  passed  from  one  line  to 
the  other,  even  on  continuous  trips.  To  meet  this 
abuse,  a  few  years  ago,  the  Legislature  of  New  York 
passed  a  law  requiring  transfers  to  be  given  to  any 
passenger  making  a  continuous  trip  over  the  roads 
covered  by  the  lease  or  contract,  so  as  to  entitle  the 
passenger  to  a  continuous  passage  over  the  line  in 
question  for  the  single  fare  of  five  cents.  The  pur- 
pose of  the  statute  was  declared  to  be  that 

"  public  convenience  may  be  promoted  by  the  opera- 
tion of  the  railroads  embraced  in  such  contract  sub- 
stantially as  a  single  railroad  with  a  single  rate  of 
fare."  " 

In  order  to  secure  the  enforcement  of  this  law,  the 
Legislature  further  provided : 

''  For  every  refusal  to  comply  with  the  requirement 
of  this  section,  the  corporation  so  refusing  shall  forfeit 
fifty  dollars  to  the  aggrieved  party.  The  provisions  of 
this  section  shall  only  apply  to  railroads  wholly  within 
the  limits  of  any  one  incorporated  city  or  village."  ^ 

The  street  railroads,  having  refused  to  give  the 
transfers  required  by  law,  actions  were  brought  to 
recover  the  penalty  of  fifty  dollars  for  each  refusal 

5  Sec.  104,  N.  Y.  Railroad  Law. 

6  Sec.  104,  N.  Y.  Railroad  Law, 


WHY  THE  PEOPLE  DISTRUST         65 

so  to  do.  One  action  was  brought  by  Mr.  Scudder, 
a  Minister  of  the  Gospel,  to  recover  two  hundred  and 
fifty  dollars,  or  five  penalties  of  fifty  dollars  each,  for 
the  refusal  of  the  street  railroad  company  on  five 
separate  occasions  to  give  him  transfers  required  by 
law.     Mr.  Scudder  recovered  in  the  lower  Court.'^ 

Mr.  Grifiin,  a  piano  dealer,  likewise  brought  an 
action  to  recover  four  penalties  for  the  refusal  of  the 
street  railway  company,  on  four  separate  occasions,  to 
give  him  transfers  as  required  by  law  in  trips  to 
and  from  his  place  of  business.  He  recovered  in  the 
lower  Court.^ 

These  cases  were  appealed  by  the  street  railway 
company  to  the  Xew  York  Court  of  Appeals  and  the 
decision  there  is  referred  to  as  the  Griffin  case.^ 

The  Court  of  Appeals,  after  holding  that  the  law 
had  been  violated  by  defendant  in  refusing  trans- 
fers, arrived  at  the  conclusion  that  but  one  penalty 
could  be  recovered.  The  process  of  reasoning  by 
which  this  conclusion  is  reached  is  thus  stated  in  the 
opinion  of  the  Court  r--^'' 

"  Eeferring  once  more  to  the  language  of  Section  104 
of  the  Railroad  Law,  imposing  a  penalty,  we  find  the 
single  sentence  in  which  it  is  contained,  opening  with 
the  words  *for  every  refusal  to  comply.'     It  is  quite 

7  Scudder  v.  Interurban  Street  Railway  Co.,  96  A.  D.  340, 

8  Griffin  v.  Interurban  Street  Railway.  Co.,  96  A.  D.  636. 
8 179  N.  Y.  438. 

10  179  N.  Y.  449. 


66  OUK  JUDICIAL  OLIGAECHY 

obvious  that  the  legislative  intention  to  permit  the  re- 
covery of  cumulative  penalties  for  refusals  of  the  de- 
fendant to  comply  with  the  provisions  of  the  railroad 
law  in  regard  to  the  transfer  of  passengers,  is  as  clearly 
manifested  as  in  any  of  the  cases  cited.  Notwithstand- 
ing this  fact,  a  majority  of  my  brethren  are  of  the 
opinion  that  while  the  rule  for  the  recovery  of  cumu- 
lative penalties,  as  already  adverted  to,  is  firmly  estab- 
lished by  the  earlier  decisions  of  this  Court,  yet  the 
changed  conditions  in  the  modern  life  of  great  cities 
render  its  modification  imperative.  .  .  .  The 
Court  is  of  the  opinion  that  if  cumulative  recoveries 
are  to  be  permitted,  the  Legislature  should  state  its 
intention  in  so  many  words;  that  a  more  definite  form 
of  statement  be  substituted  for  the  words  hitherto 
deemed  sufficient.  ...  A  sound  public  policy  re- 
quires that  only  one  penalty  should  be  recovered  in  a 
single  action,  and  that  the  institution  of  an  action  for 
a  penalty  is  to  be  regarded  as  a  waiver  of  all  previous 
penalties  incurred.'' 

The  effect  of  this  decision  was,  of  course,  to  oper- 
ate as  a  practical  repeal  of  the  statute,  since  the 
cost  to  the  plaintiff  of  suing  for  a  single  penalty 
would  be  more  than  the  amount  he  could  hope  to 
recover.  While  this  decision  did  not  call  forth  a 
dissenting  opinion  in  the  Court  of  Appeals,  Mr. 
Justice  Gaynor,  while  a  member  of  the  Appellate 
Division  of  the  Supreme  Court  (which  is  inferior 
to  the  Court  of  Appeals),  declined  to  follow  the  rule 
it  laid  down  and  stated  his  reasons  thus: 


WHY  THE  PEOPLE  DISTRUST         67 

"  The  statute  in  express  terms  provides  that  '  For 
every  refusal  to  comply  with  the  requirements  of  this 
section,  the  corporation  so  refusing  shall  forfeit  fifty 
dollars  to  the  aggrieved  party.'  We  have  no  right  to 
nullify  this  statute  by  holding  that  the  bringing  of  each 
successive  action  for  a  penalty  waives  all  penalties  in- 
curred prior  to  the  bringing  of  such  action,  and  the 
actions  brought  therefor.  The  Legislature  has  declared 
no  such  thing,  but  the  very  contrary.  A  court  of  last 
resort  may  disregard  legislation,  or  even  legislate,  hut 
only  because  there  is  no  superior  authority  to  reverse  its 
action.  This  court  is  not  in  that  position.  It  is  for  it 
to  follow  the  statutes,  and  leave  it  to  the  highest  court 
to  dispense  with  their  operation,  if  that  course  is  to  be 
pursued.  We  can  declare  no  '  sound  public  policy '  as 
against  a  statute,  and  substitute  it  for  the  statute. 
Public  policy  must  be  looked  for  in  our  statutes,  in  so 
far  as  they  have  spoken,  not  outside  of  them.  And  I 
venture  to  say  that  there  is  no  public  policy  for  the 
shielding  of  railroad  companies  from  the  payment  of 
statute  penalties  which  they  persistently  incur  year 
after  year,  but  the  contrary.  For  street  railroad  com- 
panies to  continuously  refuse  for  many  years  —  for  ten 
years  —  to  give  the  transfers  over  their  connecting  lines 
required  by  statute  is  a  condition  of  things  *  in  the 
modern  life  of  great  cities '  which  public  policy  requires 
should  be  visited  with  all  the  prescribed  penalties,  in- 
stead of  being  shielded  from  them  by  the  courts  against 
the  expressed  will  of  the  Legislature.  .  .  .  The 
Legislature  followed  a  line  of  decisions  of  the  Court  of 
Appeals,  cited  in  the  Griffin  case,  in  using  the  phrase 


68  OUR  JUDICIAL  OLIGARCHY 

'  every  refusal '  in  the  Eailroad  Law.  It  is  now  told 
that  its  language  is  not  plain  enough.  I  hope  I  may 
say  with  the  highest  respect  for  all  concerned  that  I 
do  not  see  how  the  Legislature  can  make  its  meaning 
plainer  without  passing  a  bill  of  remonstrance  that  it 
means  just  what  it  says."  ^^ 

Mr.  Justice  Gaynor,  since  the  foregoing  dissenting 
opinion  was  delivered^  was  elected  Mayor  of  Greater 
New  York. 

To  get  the  full  force  of  the  decision  of  the  Court 
of  Appeals  in  the  above  case,  it  should  be  contrasted 
v^^ith  another  and  later  decision  of  the  same  Court. ^^ 
The  statute  under  consideration  in  this  case  related 
to  the  adulteration  of  foods  and  provided : 

"  Every  person  violating  the  provisions  of  this  article 
shall  forfeit  and  pay  to  the  people  of  the  State  the  sum 
of  one  hundred  dollars  for  each  violation." 

Special  agents  of  the  government,  having  bought 
from  a  dealer,  fifteen  samples  of  vinegar,  which  it 
was  claimed  violated  the  law,  an  action  was  brought 
to  recover  the  aggregate  penalties.  The  defendant 
naturally  defended  on  the  theory  that  within  the  rule 
of  the  Griffin  case,  above  noticed,  it  was  liable  at 
most  for  only  one  penalty.     The  Court  of  Appeals, 

iiHarkow  v.  New  York  City  Railway  Co.,  121  A.  D.  194, 
p.  196. 

12  People  v.  Spencer,  201  N.  Y.  105.  (Decided  Feb.  14, 
1911.) 


WHY  THE  PEOPLE  DISTRUST         69 

however,  construed  this  statute  to  mean  that  a  sepa- 
rate recovery  could  be  had  for  each  violation,  and  in 
order  to  distinguish  the  Griffin  case,  said : 

"  Cumulative  recoveries  will  not  be  permitted  by  the 
courts  in  the  absence  of  such  a  definite  statement  by 
the  Legislature,  as  to  leave  its  intention  in  that  respect 
unmistakahle.  When  that  appears,  effect  will  be  given 
to  the  Legislative  intent."  ^^ 

Put  the  two  statutes  above  quoted  side  by  side. 
One  of  them  provides  that  "  for  every  refusal "  to 
give  a  transfer,  the  railroad  company  shall  forfeit 
fifty  dollars  to  the  aggrieved  party.  The  other  pro- 
vides "  every  person  violating  the  provisions  of  this 
article  "  shall  forfeit  for  each  violation  one  hundred 
dollars  to  the  State.  ISTow  determine  whether  the 
Court  gave  effect  to  the  intention  of  the  Legislature 
in  the  street  railway  cases,  or  whether  it  gave  effect  to 
its  own  notion  of  what  the  law  ought  to  be. 

It  is  with  satisfaction  that  I  now  call  attention  to 
a  case  wherein  the  opinion,  misinterpreting  a  statute, 
was  delivered  by  the  minority  instead  of  the  majority 
of  the  Court,  and  therefore  did  no  harm. 

Preceding  the  Republican  State  Convention  in 
Wisconsin,  in  1904,  that  State  was  the  scene  of  a 
conflict  which,  in  its  intensity  and  bitterness,  re- 
sembled a  civil  war  rather  than  a  political  campaign. 
The  issue  was  state  regulation  of  the  rates  and  charges 

13  People  V.  Spencer,  201  N,  Y.  105,  p.  109. 


TO  OUR  JUDICIAL  OLIGAECHY 

of  railways.  Unless  a  law  providing  for  such  regu» 
lation  could  be  passed,  the  reform  movement  of  that 
State,  which  had  started  some  ten  years  previously, 
was,  as  it  seemed,  destined  to  complete  failure.  The 
railways  and  other  interests  benefiting  by  special 
privilege,  believed  if  they  could  prevent  the  passage 
of  such  a  law  and  halt  the  reform  forces  at  that  point, 
they  would  eventually  force  the  repeal  of  the  law 
taxing  railways  as  other  property  was  taxed,  and  all 
the  other  reform  legislation  passed  during  the  preced- 
ing two  years  of  Governor  La  Follette's  administra- 
tion. 

It  is  no  part  of  my  purpose  to  describe  the  memor- 
able campaign  which  preceded  the  Republican  Con- 
vention in  that  State  in  1904.  Its  record  is  written 
large  in  the  history  of  the  Progressive  Movement 
which  has  taken  place  in  this  country  during  the 
last  fifteen  years.  Suffice  it  to  say  that  the  Conven- 
tion, which  assembled  in  Madison,  Wisconsin,  in 
June,  1904,  renominated  Mr.  La  Toilette  for  a  third 
term  as  Governor,  and  a  state  ticket  in  sympathy 
with  him,  and  adopted  a  platform  which  rang  true  on 
the  principles  of  railway  rate  regulation.  A  number 
of  delegates,  however,  bolted  the  convention  and 
organized  another  meeting,  which  assumed  to  nomi- 
nate a  Republican  Candidate  for  Governor  in  opposi- 
tion to  Mr.  La  Toilette.  The  Secretary  of  State, 
having  refused  to  give  to  the  bolting  nominee  the 
place  on  the  ballot  assigned  to  nominees  of  the  Re- 


WHY  THE  PEOPLE  DISTEUST        71 

publican  party,  application  was  made  to  the  Courts 
of  the  State  to  compel  the  Secretary  of  State  so  to  do. 
The  Wisconsin  Statute,  in  force  at  the  time  in 
question,  which  provided  for  settling  disputes  of 
precisely  this  character  by  the  State  Central  Com- 
mittee, was  as  follows: 

"  When  two  or  more  conventions  or  caucuses  shall  be 
held  and  the  nominations  thereof  certified,  each  claim- 
ing to  be  the  regular  convention  or  caucus  of  the  same 
political  party,  preference  in  designation  (on  the  ballot) 
shall  be  given  to  the  nominations  of  the  one  certified  by 
the  committee  which  had  been  officially  certified  to  be 
authorized  to  represent  the  party."  ^* 

The  Committee  which  had  been  officially  certified 
to  be  authorized  to  represent  the  party  certified  the 
nomination  of  Mr.  La  Follette  and  his  associates. 
Concerning  this  there  was  no  dispute.  Respecting 
the  reasoning  of  the  counsel  for  plaintiff,  who  con- 
tended that  the  statute  above  quoted  did  not  apply, 
Mr.  Justice  Marshall,  writing  for  the  majority  of 
the  court  said :  ^^ 

"To  our  minds  the  fundamental  infirmity  in  such 
reasoning  is  the  assumption  that  there  is  ambiguity  (in 
the  above  quoted  statute)  when  there  is  none  in  fact." 

14  Sec.  35,  subd,  2,  Wisconsin  Statutes,  State  ex  rel  Cook 
V.  Houser,  122  Wisconsin,  534j  p.  562. 

15  122  Wis.,  p.  568. 


T2  OUR  JUDICIAL  OLIGARCHY 

Further,  Mr.  Justice  Marshall  said: 

"Judicial  construction  can  never  legitimately  com- 
mence, until  certainty  as  to  what  is  the  sense  intended 
(in  the  statute)  is  found  to  be  so  obscure  that  it  might 
reasonably  be  said  to  be  one  thing  or  another,  either 
being  within  the  fair  scope  of  the  words  used  to  express 
the  purpose." 

Mr.  Justice  Winslow,  also  writing  for  the  majority 
of  the  Court  in  the  same  case  said : 

"  The  question  is  whether  the  Legislature  has  created 
a  special  tribunal  for  the  decision  of  controversies  as  to 
rights  upon  the  official  ballot,  and  this  question  brings 
me  necessarily  to  the  consideration  of  Sec.  35,  Statutes 
1898  (the  one  above  quoted)  for  this  is  the  only  section 
which  can  be  claimed  to  have  that  effect.  .  .  .  Is  it 
obscure  or  of  doubtful  meaning?  I  confess  that  when 
I  first  read  it  I  could  see  no  difBculty  in  construing  it, 
nor  have  I  been  able  to  see  any  such  difficulty  since  that 
time.  It  seemed,  and  now  seems  to  me  to  be  clear  and 
simple;  so  clear  and  simple  in  fact  as  not  to  need  con- 
struction." 

l^ote  now  that  the  venerable  Chief  Justice  of  the 
Court  took  a  view  of  the  statute  directly  opposite  to 
that  of  the  majority.     He  said: 

"  If  the  rules  of  construction  thus  quoted  are  applica- 
ble to  the  provisions  of  Sec.  35  in  question  —  and  I 
think  they  are  —  and  if  my  conclusion  as  to  the  facts 
of  the  case  presented  are  correct  —  and  I  believe  they 


WHY  THE  PEOPLE  DISTRUST         Y3 

are  —  then  the  second  clause  of  the  section  (the  one 
quoted  above)  has  no  application  and  the  State  Central 
Conunittee  had  no  jurisdiction  to  determine  the  con- 
troversy in  question." 

Had  the  views  of  the  Chief  Justice  prevailed  in 
this  case,  it  may  well  be  that  the  Progressive  Move- 
ment would  have  been  turned  back  in  Wisconsin 
and  halted  in  the  Nation.  It  is  to  be  regretted  that 
in  the  Wisconsin  case,  the  opinion  of  the  Chief  Justice 
favored  that  faction  of  the  party  with  which  he  was 
in  avowed  sympathy.  It  is  unfortunate  that  the  con- 
struction of  the  statutes  considered  in  the  other  cases 
above  referred  to,  and  hundreds  like  them,  results 
nniformly  in  favor  of  those  interests  which  a  large 
proportion  of  the  judges  represented  while  practic- 
ing as  attorneys.  The  mass  of  people  understand 
only  the  results  of  the  decisions,  and  with  those  re- 
sults they  are  not  satisfied. 

Two  cases  were  recently  decided  by  the  Supreme 
Court  of  the  United  States,  which  well  illustrate  the 
subject  here  discussed. ^^  I  shall  close  what  I  have 
to  say  on  the  subject  of  Judicial  Legislation  by  an 
examination  of  these  cases.  It  must  be  constantly 
borne  in  mind  that  the  cases  dealt  with  in  this  branch 
of  the  discussion,  are  those  decided  by  the  most  emi- 

16  standard  Oil  Company  of  New  Jersey,  et  al,  Appellants, 
V.  United  States.  Opinion  delivered  May  15,  1911,  221  U.  S.  1 ; 
United  States  v.  American  Tobacco  Company,  et  al.  Opinion 
delivered  May  29,  1911,  221  U.  S.  106. 


U  OUR  JUDICIAL  OLIGAECHY 

nent  courts  of  last  resort  in  the  country,  and  what- 
ever vices  appear  in  the  construction  of  statute  by 
these  courts,  are  multiplied  many  times  in  the  de- 
cisions of  inferior  courts. 

In  1890  Congress  passed  v^hat  is  known  as  the 
Anti-Trust  Act.     This  act  provides: 

"  Every  contract,  combination  in  the  form  of  trust  or 
otherwise,  or  conspiracy,  in  restraint  of  trade  or  com- 
merce among  the  several  States,  or  foreign  nations,  is 
hereby  declared  to  be  illegal." 

The  entire  act,  so  far  as  it  is  material,  is  given  in 
the  margin.  ^'^     The  reasons  which  led  to  the  passage 

17  Sec.  1.  Every  contract,  combination  in  the  form  of  trust 
or  otherwise,  or  conspiracy,  in  restraint  of  trade  or  com- 
merce among  the  several  states,  or  with  foreign  nations,  is 
hereby  declared  to  be  illegal.  Every  person  who  shall  make 
any  such  contract  or  engage  in  any  such  combination  or  con- 
spiracy, shall  be  deemed  guilty  of  a  misdemeanor,  and  on 
conviction  thereof,  shall  be  punished  by  fine  not  exceeding 
$5,000,  or  by  imprisonment  not  exceeding  one  year,  or  by 
both  said  punishments  in  the  discretion  of  the  court.  Sec.  2. 
Every  person  who  shall  monopolize  or  attempt  to  monopolize, 
or  combine  or  conspire  with  any  other  person  or  persons,  to 
monopolize  any  part  of  the  trade  or  commerce  among  the 
several  states,  or  with  foreign  nations,  shall  be  deemed  guilty 
of  a  misdemeanor,  and,  on  conviction  thereof,  shall  be  pun- 
ished by  a  fine  not  exceeding  $5,000,  or  by  imprisonment  not 
exceeding  one  year,  or  by  both  said  punishments,  in  the  dis- 
cretion of  the  court.  Sec.  3.  Every  contract,  combination  in 
form  of  trust  or  otherioise,  or  conspiracy,  in  restraint  of 
trade  or  commerce  in  any  territory  of  the  United  States,  or 
of  the  District  of  Columbia,  or  in  restraint  of  trade  or  com- 


WHY  THE  PEOPLE  DISTEUST        76 

of  this  Act  are  undisputed  and  are  set  forth  by  Mr. 
Justice  Harlan,  in  his  opinion  in  the  Standard  Oil 
case,  as  follows: 

"  All  who  recall  the  condition  of  the  country  in  1890 
will  remember  that  there  was  everywhere  among  the 
people  generally  a  deep  feeling  of  unrest.  The  Nation 
had  been  rid  of  human  slavery  —  fortunately,  as  all  now 
feel  —  but  the  conviction  was  universal  that  the  coun- 
try was  in  real  danger  from  another  kind  of  slavery 
sought  to  be  fastened  on  the  American  people,  namely, 
the  slavery  that  would  result  from  aggregations  of  capi- 
tal in  the  hands  of  a  few  individuals  and  corporations 
controlling,  for  their  own  profit  and  advantage  exclu- 
sively, the  entire  business  of  the  country,  including  the 
production  and  sale  of  the  necessaries  of  life.  Such  a 
danger  was  thought  to  be  imminent,  and  all  felt  that 
it  must  be  met  firmly  and  by  such  statutory  regulations 
as  would  adequately  protect  the  people  against  oppres- 
sion and  wrong.'^ 

Of  course,  Congress  could  only  legislate  as  to  inter- 
state commerce,  that  is,  commerce  which  in  some 
way  involved  acts  or  traffic  in  more  than  one  State. 

merce  between  any  such  territory  and  another,  or  between 
any  such  territory  or  territories  and  any  state  or  states  or 
the  District  of  Columbia,  or  with  foreign  nations,  is  hereby 
declared  illegal.  Every  person  who  shall  make  any  such 
contract  or  engage  in  any  such  combination  or  conspiracy 
shall  be  deemed  guilty  of  a  misdemeanor,  and,  on  conviction 
thereof,  shall  be  punished  by  fine  not  exceeding  $5,000,  or  by 
imprisonment  not  exceeding  one  year,  or  by  both  said  punish- 
ments, in  the  discretion  of  the  court.     (26  Stat.  209,  c.  657.) 


76  OUR  JUDICIAL  OLIGAECHY 

A  commercial  transaction  entirely  within  a  state 
would  be  subject  to  the  laws  of  that  State,  and  not 
to  the  laws  of  the  United  States.  In  our  country, 
however,  much  the  larger  part  of  commerce  is  inter- 
state, so  that  the  regulation  of  interstate  commerce  in 
a  large  measure,  regulates  the  entire  subject. 

Shortly  after  the  Anti-Trust  Act  of  1890  was 
passed,  the  United  States  brought  an  action  to  declare 
void  as  contrary  to  the  act,  a  contract,  made  between 
a  large  number  of  railroads,  intended  to  secure  uni- 
form classification  of  rates  and  to  prevent  secret 
cutting  of  rates,  and  for  other  purposes  therein 
stated.  The  case  finally  reached  the  Supreme  Court 
of  the  United  States  in  December,  1896,  and  was 
decided  in  March,  1897,  and  that  Court  held,  five 
judges  to  four,  that  the  Act  in  question  was  violated 
by  the  contract  between  the  railroads,  and  gave  judg- 
ment annulling  the  contract.  ^^  Mr.  Justice  White 
wrote  a  long  and  vigorous  dissenting  opinion,  but  he 
was  then  in  the  minority.  The  principal  con- 
tention on  the  part  of  the  railroads  in  that  case 
was,  and  the  principal  contention  in  the  opinion  of 
Mr.  Justice  White  likewise  was,  that  the  statute 
above  quoted  should  be  read  as  though  the  word 
"  unreasonable  "  or  "  undue  "  had  been  inserted  be- 
fore the  word  "  restraint,"  thus  making  the  statute 
read: 

18  United  States  v.  Trana-Missouri  Freight  Association,  166 
U.  S.  290,  374. 


WHY  THE  PEOPLE  DISTRUST         77 

"  Every  contract,  combination  in  the  form  of  trust  or 
otherwise  or  conspiracy  in  unreasonable  or  undue  re- 
straint of  trade  or  conunerce  among  the  several  states 
or  foreign  nations  is  hereby  declared  to  be  illegal." 

After  most  elaborate  arguments,  however,  the 
theory  of  construction  which  involved  interpolating 
into  the  statute  the  word  "  unreasonable "  or  its 
equivalent  word  "  undue  "  was  rejected.  Mr.  Justice 
Peckham,  writing  for  the  majority  of  the  Court  said : 

"  As  a  result  of  this  review  of  the  situation,  we  find 
two  very  widely  divergent  views  of  the  effects  which 
might  be  expected  to  result  from  declaring  illegal  all 
contracts  in  restraint  of  trade,  etc. ;  one  side  predicting 
financial  disaster  and  ruin  to  competing  railroads,  in- 
cluding thereby  the  ruin  of  shareholders,  the  destruction 
of  immensely  valuable  properties,  and  the  consequent 
prejudice  to  the  public  interest;  while  on  the  other  side 
predictions  equally  earnest  are  made  that  no  such  mourn- 
ful results  will  follow,  and  it  is  urged  that  there  is  a 
necessity,  in  order  that  the  public  interest  may  be  fairly 
and  justly  protected,  to  allow  free  and  open  competition 
among  railroads  upon  the  subject  of  the  rates  for  the 
transportation  of  persons  and  property. 

"  The  arguments  which  have  been  addressed  to  us 
against  the  inclusion  of  all  contracts  in  restraint  of 
trade,  as  provided  for  by  the  language  of  the  act,  have 
been  based  upon  the  alleged  presumption  that  Congress, 
notwithstanding  the  language  of  the  act,  could  not  have 
intended  to  embrace  all  contracts,  but  only  such  con- 
tracts as  were  in  unreasonable  restraint  of  trade.     Un- 


78  OUR  JUDICIAL  OLIGAECHY 

der  these  circumstances  we  are,  therefore,  asked  to  hold 
that  the  act  of  Congress  excepts  contracts  which  are  not 
in  unreasonable  restraint  of  trade,  and  which  only  keep 
rates  up  to  a  reasonable  price,  notwithstanding  the 
language  of  the  act  makes  no  such  exception.  In  other 
words,  we  are  asked  to  read  into  the  act  hy  way  of  ju- 
dicial legislation  an  exception  that  is  not  placed  there 
by  the  lawmaking  branch  of  the  government,  and  this 
is  to  be  done  upon  the  theory  that  the  impolicy  of  such 
legislation  is  so  clear  that  it  cannot  be  supposed  Con- 
gress intended  the  natural  import  of  the  language  it 
used.  This  we  cannot  and  ought  not  to  do.  That  im- 
policy is  not  so  clear,  nor  are  the  reasons  for  the 
exception  so  potent  as  to  permit  us  to  interpolate  an 
exception  into  the  language  of  the  act,  and  thus  ma- 
terially alter  its  meaning  and  effect.  It  may  be  that 
the  policy  evidenced  by  the  passage  of  the  act  itself  will, 
if  carried  out,  result  in  disaster  to  the  roads  and  in  a 
failure  to  secure  the  advantages  sought  from  such  legis- 
lation. Whether  that  will  be  the  result  or  not  we  do 
not  know  and  cannot  predict.  These  considerations 
are,  however,  not  for  us.  If  the  act  ought  to  read  as 
contended  for  by  defendants.  Congress  is  the  body  to 
amend  it,  and  not  this  court,  by  a  process  of  judicial 
legislation  wholly  unjustifiable." 

With  the  above  opinion  of  Mr.  Justice  Peckham, 
Chief  Justice  Fuller,  Mr.  Justice  Harlan,  Mr.  Jus- 
tice Brewer  and  Mr.  Justice  Brown  concurred.  It 
was  necessary  to  the  determination  of  this  case,  to 
decide  whether  the  word  "  unreasonable  "  could  be 


WBY  THE  PEOPLE  DISTRUST        T9 

read  into  the  statute,  for  it  was  not  found  that  the 
contract  condemned  was  in  unreasonable  restraint  of 
trade.  Mr.  Justice  White  makes  this  very  clear  in 
his  dissenting  opinion.     He  says :  ^^ 

"The  theory  upon  which  the  contract  is  held  to  be 
illegal  is  that  even  though  it  be  reasonable,  and  hence 
valid,  under  the  general  principles  of  law,  it  is  yet  void, 
because  it  conflicts  with  the  act  of  Congress  already  re- 
ferred to.  Now,  at  the  outset,  it  is  necessary  to  under- 
stand the  full  import  of  this  conclusion.  As  it  is  con- 
ceded that  the  contract  does  not  unreasonably  restrain 
trade,  and  that  if  it  does  not  so  unreasonably  restrain, 
it  is  valid  under  the  general  law,  the  decision  substan- 
tially, is  that  the  act  of  Congress  is  a  departure  from 
the  general  principles  of  law,  and  by  its  terms  destroys 
the  right  of  individuals  or  corporations  to  enter  into 
very  many  reasonable  contracts.  But  this  proposition, 
I  submit,  is  tantamount  to  an  assertion  that  the  act  of 
Congress  is  itself  unreasonable.  The  difficulty  of  meet- 
ing, by  reasoning,  a  premise  of  this  nature  is  frankly 
conceded,  for,  of  course,  where  the  fundamental  propo- 
sition upon  which  the  whole  contention  rests  is  that  the 
act  of  Congress  is  unreasonable,  it  would  seem  conducive 
to  no  useful  purpose  to  invoke  reason  as  applicable  to 
and  as  controlling  the  construction  of  a  statute  which  is 
admitted  to  be  beyond  the  pale  of  reason," 

The  issue  thus  made  as  to  the  proper  construction 
of  this  statute  between  the  majority  and  minority  of 

19  166  U.  S.  344. 


80'  OUR  JUDICIAL  OLIGARCHY 

the  court  is  clear.     The  following  quotation,  from  the 
majority  opinion,""  is  also  illuminating: 

"  Contracts  in  restraint  of  trade  have  been  known  and 
spoken  of  for  hundreds  of  years  both  in  England  and 
in  tliis  country,  and  the  term  includes  all  kinds  of  those 
contracts  which  in  fact  restrain  or  may  restrain  trade. 
Some  of  such  contracts  have  been  held  void  and  unen- 
forceable in  the  courts  by  reason  of  their  restraint  being 
unreasonable,  while  others  have  been  held  valid  because 
they  were  not  of  that  nature.  A  contract  may  be  in 
restraint  of  trade  and  still  be  valid  at  common  law.  Al- 
though valid,  it  is  nevertheless  a  contract  in  restraint  of 
trade  and  would  be  so  described  either  at  common  law  or 
elsewhere.  By  the  simple  use  of  the  term  '  contract  in 
restraint  of  trade,'  all  contracts  of  that  nature,  whether 
valid  or  otherwise,  would  be  included,  and  not  alone 
that  kind  of  contract  which  was  invalid  and  unen- 
forceable as  being  in  unreasonable  restraint  of  trade. 
When,  therefore,  the  body  of  an  act  pronounces  as  il- 
legal every  contract  or  combination  in  restraint  of  trade 
or  commerce  among  the  several  states,  etc.,  the  plain 
and  ordinary  meaning  of  such  language  is  not  limited 
to  that  kind  of  contract  alone  which  is  in  unreasonable 
restraint  of  trade,  but  all  contracts  are  included  in  such 
language  and  no  exception  or  limitation  can  be  added 
without  placing  in  the  act  that  which  has  been  omitted 
by  Congress." 

A  year  or  so  after  the  Freight  Association,   or 
Trans-Missouri,  case  above  noted,  another  case  arose, 
20  166  U.  S.  328. 


WHY  THE  PEOPLE  DISTRUST         81 

usually  called  the  Joint  Traffic  case,  involving  sub- 
stantially the  same  sort  of  a  contract  between  rail- 
roads as  that  involved  in  the  Freight  Association 
case,  and  was  decided  by  the  Supreme  Court  in  the 
same  way.^^  Justices  White,  Gray  and  Shiras  again 
dissented,  and  Mr.  Justice  Eield,  who  had  previously 
dissented,  having  resigned,  his  place  was  taken  by 
Mr.  Justice  McKenna,  who  took  no  part  in  the  de- 
cision of  the  Joint  Traffic  case. 

These  two  cases,  decided  in  March,  1897,  and 
October,  1898,  respectively,  left  no  douht  as  to  the 
interpretation  of  the  Anti-Trust  statute.  It  made 
unlawful  any  and  every  contract  in  restraint  of  trade, 
whether  such,  contract  prior  to  the  passage  of  the 
Anti  Trust  statute  would  have  been  held  void  as  in 
unreasonable  restraint  of  trade,  or  whether  it  would 
have  been  held  valid  as  not  unreasonable  in  its  re- 
straint of  trade.  In  the  Joint  Traffic  case,  decided 
in  1898,  the  Court  was  asked  to  reconsider  its  de- 
cision in  the  Trans-Missouri  case,  decided  in  189Y. 
Upon  this  point  the  opinion  of  the  majority  of  the 
Court  in  the  Joint  Traffic  case,  says:  (p.  573) 

"Finally  we  are  asked  to  reconsider  the  question 
decided  in  the  Trans-Missouri  case,  and  to  retrace  the 
steps  taken  therein,  The  Court  is  asked  to  re- 
consider a  question  but  just  decided  after  a  careful  in- 

21  United  States  v.  Joint  TraflBc  Association,  171  U.  S.  505, 
678. 


82  OUR  JUDICIAL  OLIGARCHY 

vestigation  of  the  matter  involved.  There  have 
heretofore  been  in  effect  two  arguments  of  precisely  the 
same  questions  now  before  the  Court,  and  the  same 
arguments  were  addressed  to  us  on  both  those  occasions. 
The  report  of  the  Trans-Missouri  case  shows  a  dissent- 
ing opinion  delivered  in  that  case,  and  that  the  opinion 
was  concurred  in  by  three  other  members  of  the  Court. 
—  It  was  after  a  full  discussion  of  the  questions  in- 
volved and  with  the  knowledge  of  the  views  entertained 
by  the  minority  as  expressed  in  the  dissenting  opinion, 
that  the  majority  of  the  Court  came  to  the  conclusion 
it  did.  Soon  after  the  decision,  a  petition  for  a  rehear- 
ing of  the  case  was  made  supported  by  a  printed  argu- 
ment in  its  favor  and  pressed  with  an  earnestness  and 
vigor  and  at  a  length  which  were  certainly  commen- 
surate with  the  importance  of  the  case." 

The  court  further  said  that  it  had  again  listened 
to  the  same  arguments  in  the  case  under  considera- 
tion and  again  reached  the  same  conclusion.  Those 
interested  in  having  the  word  "  unreasonable "  or 
"  undue  "  read  into  the  Anti-Trust  statute  after  these 
decisions,  turned  their  attention  to  Congress  and 
applied  as  unsuccessfully  to  Congress  as  they  had 
to  the  courts  to  procure  the  above  suggested  modifi- 
cation of  the  statute.  Finally,  after  various  other 
applications  had  failed,  on  April  first,  1908,  Senator 
Warner  introduced  Senate  Bill  'No.  6440  designed 
among  other  things  to  effect  the  above  mentioned 
purpose.     The  bill  was  first  referred  to  the  Com- 


WHY  THE  PEOPLE  DISTEUST         83 

mitte  on  Interstate  Commerce;  later  it  was  trans- 
ferred to  the  Judiciary  Committee  of  the  Senate. 
On  January  26,  1909,  the  Judiciary  Committee  re- 
ported the  bill  adversely.22     In  that  report  it  is  said : 

"  The  anti-trust  act  makes  it  a  criminal  offense  to 
violate  the  law,  and  provides  a  punishment  both  by  fine 
and  imprisonment.  To  inject  into  the  act  the  question 
of  whether  an  agreement  or  combination  is  reasonable 
or  unreasotiable  would  render  the  act  as  a  criminal  or 
penal  statute  indefinite  and  uncertain,  and  hence,  to 
that  extent,  utterly  nugatory  and  void,  and  would  prac- 
tically amount  to  a  repeal  of  that  part  of  the  act.  .  .  . 
And  while  the  same  technical  objection  does  not  apply 
to  civil  prosecutions,  the  injection  of  the  rule  of  reason- 
ableness or  unreasonableness  would  lead  to  the  greatest 
variableness  and  uncertainty  in  the  enforcement  of  the 
law.  The  defense  of  reasonable  restraint  would  be 
made  in  every  case,  and  there  would  be  as  many  differ- 
ent rules  of  reasonableness  as  cases,  courts  and  juries. 
What  one  court  or  jury  might  deem  unreasonable 
another  court  or  jury  might  deem  reasonable.  .  .  . 
To  amend  the  anti-trust  act,  as  suggested  by  this  bill, 
would  be  to  entirely  emasculate  it,  and  for  all  practical 
purposes  render  it  nugatory  as  a  remedial  statute. 
Criminal  prosecutions  would  not  lie  and  civil  remedies 
would  labor  under  the  greatest  doubt  and  uncertainty. 
The  act  as  it  exists  is  clear,  comprehensive,  certain  and 
highly  remedial.  It  practically  covers  the  field  of  Fed- 
eral jurisdiction,  and  is  in  every  respect  a  model  law. 

22  Senate  Report  848,  p.  10. 


84  OUE  JUDICIAL  OLIGARCHY 

To  destroy  or  -undermine  it  at  the  present  juncture,  when 
combinations  are  on  the  increase,  and  appear  to  be  as 
oblivious  as  ever  of  the  rights  of  the  public,  would  be  a 
calamity." 

President  Taft,  in  a  special  message  to  Congress 
said:  -^ 

"  Many  people  conducting  great  businesses  have  cher- 
ished a  hope  and  belief  that  in  some  way  or  other  a  line 
may  be  drawn  between  '  good  trusts '  and  '  bad  trusts,' 
and  that  it  is  possible  by  amendment  to  the  anti-trust 
law  to  make  a  distinction  under  which  good  combina- 
tions may  be  permitted  to  organize,  suppress  competi- 
tion, control  prices,  and  do  it  all  legally  if  only  they 
do  not  abuse  the  power  by  taking  too  great  profit  out  of 
the  business.  They  point  with  force  to  certain  notori- 
ous trusts  as  having  grown  into  power  through  criminal 
methods  by  the  use  of  illegal  rebates  and  plain  cheating, 
and  by  various  acts  utterly  violative  of  business  honesty 
and  morality,  and  urge  the  establishment  of  some  legal 
line  of  separation  by  which  '  criminal  trusts '  of  this 
kind  can  be  punished,  and  they,  on  the  other  hand,  be 
permitted  under  the  law  to  carry  on  their  business. 
Now  the  public,  and  especially  the  business  public, 
ought  to  rid  themselves  of  the  idea  that  such  a  distinc- 
tion is  practicable  or  can  be  introduced  into  the  statute. 
Certainly  under  the  present  anti-trust  law  no  such  dis- 
tinction exists.  It  has  been  proposed,  however,  that 
the  word  '  reasonable '  should  be  made  a  part  of  the 
statute,  and  then  that  it  should  be  left  to  the  court  to 

23  January  7,  1910. 


WHY  THE  PEOPLE  DISTRUST         85 

say  what  is  a  reasonable  restraint  of  trade,  what  is  a 
reasonable  suppression  of  competition,  what  is  a  reason- 
able monopoly.  I  venture  to  think  that  this  is  to  put 
into  the  hands  of  the  court  a  power  impossible  to  exer- 
cise on  any  consistent  principle  which  will  insure  the 
uniformity  of  decision  essential  to  good  judgment.  It 
is  to  thrust  upon  the  courts  a  burden  that  they  have  no 
precedents  to  enable  them  to  carry,  and  to  give  them  a 
power  approaching  the  arbitrary,  the  abuse  of  which 
might  involve  our  whole  judicial  system  in  disaster." 

It  was  in  this  well  settled  state  of  the  law  that  the 
Standard  Oil  and  Tobacco  Trust  cases  were  presented 
to  the  Supreme  Court  of  the  United  States  in  May, 
1911. 

It  is  not  amiss,  before  examining  the  decisions  of 
the  Supreme  Court  itself  in  these  cases  to  glance  at 
the  decisions  of  the  learned  lower  Courts  wherein 
these  cases  were  considered. 

The  American  Tobacco  Company  case  came  up 
from  the  United  States  Circuit  Court  of  Appeals  for 
the  Southern  District  of  ISTew  York.  The  Joint 
Traffic  Association  case  above  referred  to  also  origi- 
nated in  that  court  and  had  been  decided  in  favor 
of  a  construction  of  the  statute  substantially  the 
same  as  that  contended  for  by  the  minority  members 
of  the  Supreme  Court  when  the  case  finally  reached 
that  tribunal  on  appeal.^^ 

24  United  States  v.  Joint  Traffic  Association,  76  Fed.  895; 
affirmed  without  opinion,  89  Fed.  1020. 


86  OUR  JUDICIAL  OLIGAECHY 

When  the  American  Tobacco  Company  case,  there- 
fore, came  before  the  same  Court,  in  IsTovember,  1908, 
the  members  of  the  Court  were  mindful  of  their  re- 
versal in  the  Joint  Traffic  case.  Their  opinions 
leave  no  doubt  that  they  thoroughly  understood  the 
rule  of  law  which  the  Supreme  Court  had  announced 
in  that  case.     Mr.  Justice  Lacombe  said :  ^^ 

"  Act  July  2,  1890,  c.  647,  26  Stat.  209  (U.  S.  Comp. 
St.  1901,  p.  3200),  in  its  first  section,  declares  to  be 
illegal  '  every  contract,  combination  in  the  form  of  trust 
or  otherwise,  or  conspiracy,  in  restraint  of  trade  or 
commerce  among  the  several  states,  or  with  foreign  na- 
tions.' That  declaration,  ambiguous  when  enacted,  is, 
as  the  writer  conceives,  no  longer  open  to  construction 
in  the  inferior  federal  courts.  Disregarding  various 
dicta  and  following  the  several  propositions  which  have 
been  approved  by  the  successive  majorities  of  the  Su- 
preme Court,  this  language  is  to  be  construed  as  pro- 
hibiting any  contract  or  combination  whose  direct  effect 
is  to  prevent  the  free  play  of  competition,  and  thus  tend 
to  deprive  the  country  of  the  services  of  any  number 
of  independent  dealers  however  small.  As  thus  con- 
strued the  statute  is  revolutionary.  .  .  .  The  act 
may  be  termed  revolutionary,  because,  before  its  pas- 
sage, the  courts  had  recognized  a  ^  restraint  of  trade ' 
which  was  held  not  to  be  unfair,  but  permissible,  al- 
though it  operated  in  some  measure  to  restrict  competi- 
tion.    .     .     .     The   act  as   above  construed   prohibits 

25  164  Fed.  701. 


WHY  THE  PEOPLE  DISTRUST        87. 

every  contract  or  combination  in  restraint  of  competi- 
tion." 

Mr.  Justice  Coxe  said :  -^ 

"  The  anti-trust  act  embraces  and  declares  to  be  illegal 
every  contract  combination  or  conspiracy,  in  whatever 
form,  of  whatever  nature  and  whoever  may  be  the  par- 
ties to  it,  which  directly  or  necessarily  operates  in  re- 
straint of  interstate  or  international  trade  or  commerce. 
The  act  is  not  limited  to  unreasonable  restraints  but 
embraces  all  direct  restraints." 

Mr.  Justice  JSToyes  said :  ^"^ 

"  In  so  far  as  combinations  result  from  the  operation 
of  economic  principles,  it  may  be  doubtful  whether  they 
should  be  stayed  at  all  by  legislation.  It  may  be  that 
the  evils  in  the  existing  situation  should  be  left  to  the 
remedies  afforded  by  the  laws  of  trade.  On  the  other 
hand,  it  may  be  that  the  protection  of  the  public  from 
the  operations  of  combinations  of  capital  —  especially 
those  possessing  the  element  of  oppression  —  requires 
some  measure  of  governmental  intervention.  It  may 
be  that  the  present  anti-trust  statute  should  be  amended 
and  made  applicable  only  to  those  combinations  which 
unreasonably  restrain  trade  —  that  it  should  draw  a  line 
between  those  combinations  which  work  for  good  and 
those  which  work  for  evil.  But  these  are  all  legisla- 
tive, and  not  judicial,  questions.  It  cannot  be  too 
clearly  borne  in  mind  that  this  court  has  nothing  to  do 

26  164  Fed.  707.  ^f  Id.,  p.  711. 


88  OUR  JUDICIAL  OLIGARCHY 

with  the  wisdom,  justice,  or  expediency  of  the  statute. 
Equally  true  is  it  that  this  court,  in  applying  the  statute, 
must  follow  the  decisions  of  the  Supreme  Court." 

When  the  Standard  Oil  case  was  before  the  United 
States  Circuit  Court  of  Appeals,  in  1909,  the  ques- 
tion of  the  constiTiction  of  the  Anti-Trust  act  was 
considered  in  the  light  of  the  previous  decisions  of 
the  United  States  Supreme  Court  above  noticed,  and 
it  is  said:  ^^ 

"Repeated  discussion  and  consideration  of  the  pur- 
pose and  meaning  of  this  act  have  established,  by  con- 
trolling authority,  beyond  debate  in  this  tribunal,  these 
pertinent  rules  for  its  interpretation  and  application,  to 
the  facts  of  this  case.  The  test  of  the  legality  of  a  con- 
tract or  combination  under  this  act  is  its  direct  and 
necessary  effect  upon  competition  in  interstate  or  inter- 
national commerce.  If  the  necessary  effect  of  a  con- 
tract, combination,  or  conspiracy  is  to  stifle,  or  directly 
and  substantially  to  restrict,  free  competition  in  com- 
merce among  the  States,  or  with  foreign  nations,  it  is  a 
contract,  combination,  or  conspiracy  in  restraint  of  that 
trade,  and  it  violates  this  law.  The  parties  to  it  are 
presumed  to  intend  the  inevitable  result  of  their  acts, 
and  neither  their  actual  intent  nor  the  reasonableness 
of  the  restraint  imposed  may  withdraw  it  from  the  de- 
nunciation of  the  statute." 

From  the  foregoing  review  of  the  authorities,  it 
conclusively  appears  that  when  the  appeals  of  the 

28  173  Fed.  179. 


WHY  THE  PEOPLE  DISTEUST         89 

Standard  Oil  Company  and  the  American  Tobacco 
Company  were  decided  in  the  Supreme  Court,  in 
May,  1911,  that  Court  had  three  times  decided  against 
the  construction  of  the  Anti-Trust  Statute  contended 
for  by  those  companies,  the  inferior  federal  courts  had 
followed  and  adopted  the  ruling  of  the  Supreme 
Court,  the  Congress  of  the  United  States  and  the 
President  of  the  United  States  had  said  that  the  con- 
struction of  the  statute  declared  by  the  Supreme 
Court  in  its  majority  opinions  above  noted  was  sound 
and  wholesome  and  that  the  construction  contended 
for  by  the  companies  would  have  made  the  statute 
"  nugatory  "  and  might,  so  said  the  President,  "  in- 
volve our  whole  judicial  system  in  disaster." 

It  is  not  surprising,  therefore,  that  the  country  was 
shocked  when  the  long-delayed  opinions  were  handed 
down,  and  it  was  found  that  the  court  had  adopted  the 
construction  of  the  statute  so  often  rejected  and  con- 
demned by  every  department  of  the  government. 

The  unlawful  combinations,  at  which  the  statute 
was  aimed  were  quick  to  perceive  the  significance  of 
these  decisions.  They  have  also  been  quick  to  take 
advantage  of  them.  The  mass  of  people  are  slower 
to  realize  the  full  significance  of  these  decisions,  but 
that  realization  is  certain  to  be  eventually  brought 
home  to  them.  The  Trans-Missouri  case  above  noted 
and  others  must  have  been  decided  in  favor  of  the 
combinations  had  the  rule  subsequently  announced 
in  the   Standard  Oil  and  Tobacco  Company  cases 


90  OUR  JUDICIAL  OLIGAECHY^ 

been  applied;  and  similar  combinations  must  in  the 
future  be  upheld. 

My  purpose  in  gathering  together  the  authorities 
showing  the  construction  of  the  anti-trust  statute  by 
every  department  of  the  government,  is  not  to  show 
that  the  Supreme  Court  has  reversed  itself,  nor  to 
convict  it  of  an  inconsistency.  Had  the  Court  read 
into  the  Anti-Trust  Act  the  word  "  unreasonable  "  or 
"  undue  "  when  that  statute  first  came  before  it  for 
consideration,  it  would  not  have  been  less  judicial 
legislation  then  than  it  was  to  do  the  same  thing  in 
the  Standard  Oil  and  Tobacco  cases.  But  had  those 
words,  or  either  of  them,  been  read  into  the  statute 
by  the  courts  in  the  first  instance,  the  right  of  the 
Court  so  to  do,  which  is  the  question  we  are  here 
discussing,  would  not  so  clearly  have  been  made  an 
issue  before  the  whole  country.  The  fact  that  this 
statute  had  been  construed  in  one  way  by  every  de- 
partment of  the  government  for  many  years,  and 
that  such  construction  had  been  repeatedly  declared 
to  be  the  only  safe  and  proper  one,  had  naturally  and 
properly,  too,  led  the  people  of  the  country  to  take  the 
same  view  of  it,  and  now  to  change  all  this,  to  recant 
everything  that  has  been  said  on  the  subject,  and 
adopt  a  view  many  times  rejected  and  declared  dan- 
gerous, the  attention  of  the  whole  country  is  focused 
upon  the  Court's  action. 

Precisely  what  the  Court  decided  in  the  Standard 
Oil  case,  in  the  opinion  handed  down  on  May  15, 


,WHY  THE  PEOPLE  DISTKUST        91 

1911,  is  stated  briefly,  in  that  opinion,  written  by 
Chief  Justice  White,  as  follows :  ^^ 

"  The  statute  under  this  view  evidenced  the  intent  not 
to  restrain  the  right  to  make  and  enforce  contracts, 
whether  resulting  from  combinations  or  otherwise,  which 
did  not  unduly  restrain  interstate  or  foreign  commerce, 
but  to  protect  the  commerce  from  being  restrained  by 
methods,  whether  old  or  new,  which  would  constitute 
an  interference  that  is  an  undue  restraint." 

This  is  exactly  the  view  taken  of  the  statute,  by 
the  same  learned  Justice  in  the  Trans-Missouri  and 
Joint  Traffic  cases  heretofore  discussed,  and  he  adds 
nothing  in  the  Standard  Oil  case  to  the  very  able 
argument  in  support  of  those  views  which  he  sub- 
mitted in  his  dissenting  opinion  in  the  Trans- 
Missouri  case.  The  same  construction  is  placed  upon 
the  statute  in  the  American  Tobacco  Company  case, 
but  there  is  this  difference  noticeable  between  the 
opinions  in  the  two  cases :  In  the  Standard  Oil  case. 
Chief  Justice  White,  in  bis  opinion,  seems  to  admit 
that  the  views  there  expressed  conflict  with  the  opin- 
ion of  the  majority  of  the  Court  in  the  Trans-Missouri 
and  Joint  Traffic  cases,  while  in  the  American  To- 
bacco Co.  case  it  is  contended  that  there  is  no  con- 
flict between  the  rule  laid  down  in  that  and  the 
Standard  Oil  case,  and  the  rule  announced  in  the 
Trans-Missouri  and  Joint  Traffic  cases  noticed  above. 

29  221  U.  S.  1,  p.  60. 


92  OUR  JUDICIAL  OLIGARCHY 

In  the  opinion  by  Mr.  Justice  White  in  the  Stand- 
ard Oil  case,  after  trying  to  harmonize  that  decision 
^ith  the  two  previous  cases  mentioned,  and  evidently 
with  unsatisfactory  results,  it  is  said :  ^^ 

"  And  in  order,  not  in  the  slightest  degree  to  he  want- 
ing in  frankness,  we  say  that  in  so  far,  however,  as  by 
separating  the  general  language  used  in  the  opinions 
in  the  freight  association  and  joint  traffic  cases  from 
the  context  and  the  subject  and  parties  with  which  the 
cases  were  concerned,  it  may  be  conceived  that  the  lan- 
guage referred  to  conflicts  with  the  construction  which 
we  give  the  statute,  they  are  now  necessarily  limited  and 
qualified." 

In  the  American  Tobacco  case,  however,  the 
learned  Chief  Justice,  writing  the  opinion  for  the 
Court,  after  construing  the  statute  the  same  as  he 
had  done  in  the  Standard  Oil  case,  said :  ^^ 

"  We  say  the  doctrine  thus  stated  was  in  accord  with 
all  the  previous  decisions  of  this  court,  despite  the  fact 
that  the  contrary  view  was  sometimes  erroneously  at- 
tributed to  some  of  the  expressions  used  in  two  prior 
decisions.  (Trans-Missouri  Freight  Association  and 
Joint  Traffic  cases,  166  U.  S.  290,  and  171  U.  S.  505). 
That  such  view  was  a  mistaken  one  was  fully  pointed 
out  in  the  Standard  Oil  case,  and  is  additionally  shown 
by  a  passage  in  the  opinion  in  the  Joint  Traffic  case,  as 
follows  (171  U.  S.  568)  :     ^The  act  of  Congress  must 

sold.,  p.  67.  31221  U.  S.  106,  p.  179. 


WHY  THE  PEOPLE  DISTRUST         93 

have  a  reasonable  construction  or  else  there  would 
scarcely  be  an  agreement  or  contract  among  business 
men  that  could  not  be  said  to  have  indirectly  or  re- 
motely, some  bearing  on  interstate  commerce  and  pos- 
sibly to  restrain  it.' " 

Concerning  the  above  quoted  statement,  Justice 
Harlan,  in  his  dissenting  opinion,  in  the  American 
Tobacco  case,  said :  ^^ 

"  If  I  do  not  misapprehend  the  opinion  Just  deliv- 
ered, the  court  insists  that  what  was  said  in  the  opinion 
in  the  Standard  Oil  case  was  in  accordance  with  our 
previous  decisions  in  the  Trans-Missouri  and  Joint  Traf- 
fic cases  (166  U.  S.  290;  171  U.  S.  505),  if  we  resort 
to  reason.  This  statement  surprises  me  quite  as  much 
as  would  a  statement  that  black  was  white  or  white  was 
black." 

A  pertinent  inquiry  which  arises  at  this  point  is : 
If  the  doctrine  of  the  Trans-Missouri  Ereight  case, 
and  Joint  Traffic  case,  is  the  same  as  that  of  the 
Standard  Oil  and  Tobacco  cases,  "why  was  it  necessary 
for  Mr.  Justice  White,  later  Chief  Justice,  to  write 
a  long  and  elaborate  dissenting  opinion  in  the  first  of 
these  cases,  and  likewise  dissent  in  the  second  one  ? 

It  w'ould  certainly  seem  that  the  learned  Chief 
Justice  was  hard  pressed  for  an  argument  when  he 
quoted  from  the  Joint  Traffic  case,  the  language  that 
"  The  Act  of  Congress  must  have  a  reasonable  con- 

32  Id.,  p.  191. 


94:  OUR  JUDICIAL  OLIGAECHYi 

struction,"  as  equivalent  to  the  construction  which 
the  majority  placed  upon  the  statute  in  the  Standard 
Oil  case  and  the  American  Tobacco  Co.  case.  Is 
the  declaration  that  an  Act  of  Congress  must  not  be 
construed  unreasonably  equivalent  to  reading  the 
word  unreasonable  into  the  statute?  To  illustrate: 
— ■  Every  State  has  a  law  which  in  substance  pro- 
vides that  any  person  confined  in  a  jail  or  prison  by 
reason  of  conviction  of  some  offense,  who  breaks  there- 
from, is  guilty  of  a  crime.  Suppose,  however,  the 
jail  takes  fire  and  the  convict,  in  order  to  avoid  be- 
ing burned  to  death,  breaks  out  of  jail.  Would  any 
one  contend  that  a  court  would  so  construe  the  statute 
as  to  make  it  apply  to  such  a  case  and  hold  that  the 
person  so  breaking  out  of  jail  had  committed  a  crime  ? 
Obviously  the  statute  was  not  intended  to  cover  such 
a  case.  The  court  would  give  the  statute  a  reasonable 
construction  and  hold  that  it  was  never  intended  to 
apply  to  a  case  such  as  I  have  described.  But,  would 
this  act  of  the  court  be  equivalent  to  reading  into 
the  statute  the  word  unreasonable  so  as  to  make  it 
provide  that  only  a  convict  who  unreasonably  breaks 
out  of  jail  shall  be  guilty  of  a  crime  ? 

Or  take  another  case :  —  All  States  have  statutes 
against  assault  and  battery.  Suppose  a  person  is 
drowning  or  about  to  fall  or  throw  himself  in  front 
of  an  approaching  train  and  an  onlooker  by  the  ex- 
ercise of  violence,  and  in  the  case  of  a  person  drown- 
ing,   possibly    very    great    violence,    succeeded    in 


.WHY  THE  PEOPLE  DISTRUST         95 

rescuing  the  one  in  peril.  The  rescuer  clearly  com- 
mitted acts  which  ordinarily  would  amount  to  as- 
sault and  battery,  but  would  any  court,  under  the 
circumstances,  hold  that  an  assault  and  battery  had 
been  committed?  Clearly  not.  The  court  would 
give  the  statute  a  reasonable  construction  and  say 
that  it  was  not  intended  to  cover  such  a  case.  Must 
we  then  treat  this  action  of  the  court  as  equivalent 
to  reading  into  the  statute  the  word  unreasonable  and 
make  it  say  in  effect  that  only  a  person,  who  unrea- 
sonably commits  an  assault  and  battery  is  guilty  of 
a  crime  ? 

The  argument  of  the  majority  opinion  is  that,  at 
common  law,  or  in  the  condition  of  the  law  as  it 
existed  in  this  country  prior  to  the  passage  of  the 
Anti-Trust  act,  there  were  two  kinds  of  contracts 
in  restraint  of  trade,  one  of  which  was  valid  and  the 
other  not.  One  was  what  the  law  described  as  an 
unreasonable  restraint  of  trade,  and  the  other  a 
reasonable  restraint  of  trade.  In  this  condition, 
Congress  stepped  in  and  said  every  contract  in  re- 
straint of  trade  is  invalid.  Now  the  majority  opin- 
ion simply  holds  that  Congress  did  not  mean  what 
it  said,  but  that  it  only  meant  every  contract  which 
was  in  unreasonable  restraint  of  trade,  was  invalid. 
In  other  words,  every  contract  which  was  already 
void  under  the  law,  was  declared  invalid  by  the 
statute. 

To  illustrate:  —  At  common  law,  there  were  two 


96  OUR  JUDICIAL  OLIGAECHY 

kinds  of  beatings  which  a  husband  could  administer 
to  his  wife.  One  was  a  reasonable  beating,  which 
was  lawful,  the  old  rule  being  that  the  husband 
could  use  "  a  stick  as  large  as  his  finger  but  not 
larger  than  his  thumb."  ^^  The  other  was  an  un- 
reasonable beating,  where  too  large  a  stick  was  used 
or  too  much  violence  employed.  Now,  when  a 
statute  steps  in  and  says  that  any  beating  of  the  wife 
by  the  husband  is  unlawful,  the  Supreme  Court, 
by  a  parity  of  reasoning,  should  hold,  if  the  case 
of  a  wifebeater  could  be  brought  before  it,  that  the 
statute  did  not  really  mean  to  prohibit  all  beating 
of  wives  by  husbands,  but  only  such  beatings  as  had 
been  held  unlawful  at  common  law. 

Concerning  the  contentions  of  the  majority  of  the 
Court,  as  set  forth  in  the  opinions  of  Mr,  Justice 
White,  respecting  the  "  rule  of  reason,"  Mr.  Justice 
Harlan,  in  the  Tobacco  case,  said :  ^^ 

"  It  is  scarcely  just  to  the  majority  in  those  two  cases 
for  the  court  at  this  late  day  to  say  or  to  intimate  that 
they  interpreted  the  act  of  Congress  without  regard  to 
the  ^  rule  of  reason,'  or  to  assume,  as  the  court  now  does, 
that  the  act  was,  for  the  first  time  in  the  Standard  Oil 
case,  interpreted  in  the  Might  of  reason.'  One  thing 
is  certain,  ^  rule  of  reason,'  to  which  the  court  refers, 
does  not  justify  the  perversion  of  the  plain  words  of  an 
act  in  order  to  defeat  the  will  of  Congress." 

33  Battershall  on  Domestic  Relations,  p.  310. 
Si  Id.,  p.  191. 


WHY  THE  PEOPLE  DISTEUST         97 

Tliis  is  strong  language,  especially  so  when  coming 
from  Mr.  Justice  Harlan  and  used  in  an  opinion, 
carefully  prepared,  and  deliberately  filed  to  be  a 
record  of  the  Court's  proceeding  in  that  case  for  all 
future  time. 

Eurther,  in  the  same  dissenting  opinion,  Mr.  Jus- 
tice Harlan  says :  ^^ 

"By  every  conceivable  form  of  expression  the  ma- 
jority, in  the  Trans-Missouri  and  Joint  Traffic  cases, 
adjudged  that  the  act  of  Congress  did  not  allow  re- 
straint of  interstate  trade  to  any  extent  or  in  any  form, 
and  three  times  it  expressly  rejected  the  theory,  which 
had  been  persistently  advanced,  that  the  act  should  be 
construed  as  if  it  had  in  it  the  word  '  unreasonable ' 
or  *  undue.'  But  now  the  court,  in  accordance  with 
what  it  denominates  the  *rule  of  reason,'  in  effect  in- 
serts in  the  act  the  word  ^  undue,'  which  means  the  same 
as  '  unreasonable,'  and  thereby  makes  Congress  say  what 
it  did  not  say,  what,  as  I  think,  it  plainly  did  not  intend 
to  say,  and  what,  since  the  passage  of  the  act,  it  has 
explicitly  refused  to  say.  It  has  steadily  refused  to 
amend  the  act  so  as  to  tolerate  a  restraint  of  interstate 
commerce  even  where  such  restraint  could  be  said  to  be 
*  reasonable '  or  *  due.'  In  short,  the  court  now,  by  ju- 
dicial legislation,  in  effect  amends  an  act  of  Congress 
relating  to  a  subject  over  which  that  department  of  the 
government  has  exclusive  cognizance.  I  beg  to  say  that, 
in  my  judgment,  the  majority,  in  the  former  cases,  were 
guided  by  the  *  rule  of  reason ';  for,  it  may  be  assumed, 

35  ld„  p.  192. 


98  OUR  JUDICIAL  OLIGARCHY 

they  knew  quite  as  well  as  others  what  the  rules  of 
reason  require  when  a  court  seeks  to  ascertain  the  will 
of  Congress  as  expressed  in  a  statute.  It  is  obvious, 
from  the  opinions  in  the  former  cases,  that  the  majority 
did  not  grope  about  in  darkness,  but  in  discharging  the 
solemn  duty  put  on  them  they  stood  out  in  the  full 
glare  of  the  ^ light  of  reason'  and  felt  and  said  time 
and  again  that  the  court  could  not,  consistently  with 
the  Constitution,  and  would  not,  usurp  the  functions 
of  Congress  by  indulging  in  judicial  legislation.  They 
said  in  express  words,  in  the  former  cases,  in  response 
to  the  earnest  contentions  of  counsel,  that  to  insert  by 
construction  the  word  '  unreasonable '  or  *  undue '  in 
the  act  of  Congress  would  be  judicial  legislation.  Let 
me  say,  also,  that  as  we  all  agree  that  the  combination 
in  question  was  illegal  under  any  construction  of  the 
anti-trust  act,  there  was  not  the  slightest  necessity  to 
enter  upon  an  extended  argument  to  show  that  the  act 
of  Congress  was  to  be  read  as  if  it  contained  the  word 
'  unreasonable '  or  '  undue.'  All  that  is  said  in  the 
court's  opinion  in  support  of  that  view  is,  I  say  with 
respect,  obiter  dicta,  pure  and  simple." 

The  last  point  made  by  Mr.  Justice  Harlan  in  the 
above  quotation  is  peculiarly  significant.  All  mem- 
bers of  the  Court  in  both  the  Standard  Oil  and 
American  Tobacco  Co.  cases  agreed  that  the  con- 
tracts and  acts  there  considered  were  unlawful  under 
any  and  every  view  of  the  statute. 

Why  then  was  it  necessary  to  go  outside  the  records 
in  the  cases^  and  outside  of  anything  before  the 


WHY  THE  PEOPLE  DISTEUST         99 

Court,  and  anything  wliicli  the  Court  could  really 
decide  in  the  cases  before  it,  to  indulge  in  an  aca- 
demic discussion  of  this  statute  ? 

There  seems  to  be  but  one  answer  to  the  question. 

A  majority  of  the  Court,  as  constituted  when  the 
Standard  Oil  and  American  Tobacco  cases  were  de- 
cided, were  ready  to  agree  with  the  construction  of 
this  statute,  always  contended  for  by  the  chief  Jus- 
tice. The  men,  who  standing  with  Mr.  Justice 
Harlan,  previously  had  constituted  a  majority  of  the 
Court  were  gone.  Chief  Justice  Fuller,  Justice 
Brown,  Justice  Brewer  and  Justice  Peckham,  who, 
with  Justice  Harlan,  constituted  a  majority  of  the 
Court  when  the  Trans-Missouri  and  Joint  Traffic 
cases  were  decided,  were  no  longer  members  of  the 
Court.  Their  places  had  been  taken  by  new  men. 
Pour  lawyers,  recently  elevated  to  the  Bench,  agreed 
with  the  view  of  this  statute,  always  contended  for 
by  Mr.  Justice  White,  and  three  times  rejected  by  the 
Court,  and  the  policy  of  the  government,  as  to  com- 
binations and  monopolies  in  restraint  of  trade,  was 
changed  in  a  day.  This  was  done  also  without  any 
question  being  presented  to  the  Court,  that  required 
or  called  for  the  opinion  rendered.  On  the  lith  day 
of  May,  1911,  every  contract,  in  whatever  form,  in 
restraint  of  trade  among  the  States  or  with  foreign 
nations,  was  illegal  and  every  combination  built  upon 
such  contract  or  contracts  was  illegal,  and  subject 
to  be  destroyed  by  the  judgment  of  a  Court,  and  the 


100         OUR  JUDICIAL  OLIGARCHY 

participants  therein  punished  as  criminals.  On  the 
fifteenth  day  of  May,  1911,  all  this  was  changed,  and 
it  was  only  such  contracts  as  some  court  might  hold 
to  be  in  "  undue  "  or  "  unreasonable "  restraint  of 
trade  that  were  unlawful.  It  was  only  combinations 
built  upon  such  "  unreasonable  "  contracts  that  were 
unlawful,  and  only  participants  in  such  last  named 
combinations  that  became  criminals.  Scores  of  most 
important  contracts  and  transactions  that  violated  the 
law  on  the  11th  day  of  May,  1911,  were  valid  on 
the  succeeding  day.  What  it  was  not  lawful  to  do 
on  the  nth  day  of  May,  1911,  to  restrain  commerce 
and  destroy  competition,  it  was  lawful  to  do  on  the 
succeeding  day. 

What  had  occurred  ? 

No  new  law  had  been  passed  by  Congress.  ISo 
new  statute  or  new  or  novel  state  of  facts  even  had 
been  presented  to  a  Court  for  consideration.  The 
Supreme  Court,  in  deciding  that  certain  acts  violated 
the  statute,  had  simply  stepped  aside  from  the  de- 
cision in  hand,  and  said  in  substance  that  certain 
other  acts  equally  condemned  by  the  language  of  the 
statute,  and  the  previous  decisions  of  the  Court, 
would  not  in  the  future  be  held  to  violate  the  statute. 
That  was  all.  Had  the  members  of  the  Court  met 
and  done  this  without  deciding  any  case  at  all,  I 
suppose  no  one  would  have  defended  their  act.  But 
as  a  practical  matter,  wherein  lies  the  difference  ? 
The  important  fact  is  that  the  Court,  as  Mr.  Justice 


WHY  THE  PEOPLE  DISTRUST       101 

Harlan  shows,  amended  the  statute  and  did  so  by 
reading  into  it  language  that  was  not  Avritten  there 
by  Congress.  If  the  Court,  under  the  Constitution, 
has  no  authority  to  do  this,  what  does  it  matter 
whether  at  the  time  its  members  were  engaged  in  de- 
ciding a  case  or  not  ? 

One  of  the  most  important  results  of  this  decision 
will  be  that  it  will  bring  home  to  the  public  mind 
the  conviction  that  the  courts  must  be  reckoned  with 
as  a  law-making  branch  of  the  government.  Whether 
the  people  will  follow  the  illustrious  example  of 
President  Taft,  who  after  the  court's  decision  up- 
held the  construction  of  the  statute  he  formerly  vig- 
orously condemned,^^  remains  to  be  seen. 

The  evidence  to  date  indicates  that  they  will  not 

36  As  we  have  already  seen.  President  Taft,  in  a  special 
message  to  Congress,  under  date  of  Jan.  7,  1910,  condemned  in 
the  most  vigorous  language,  the  proposition  that  Congress 
should  amend  the  statute  by  inserting  in  it  the  words  the 
court  has  now  read  into  it  and  of  such  action,  declared  that 
it  would  give  the  courts  "  A  power  approaching  the  arbitrary, 
the  abuse  of  which  might  involve  our  whole  judicial  system 
in  disaster."  On  June  21,  1911,  following  the  decisions  in  the 
Standard  Oil  and  Tobacco  Company  cases,  in  a  speech  at  the 
Yale  Alumni  Luncheon,  President  Taft  said :  "  It  has  fallen 
to  my  lot  to  have  five  members  of  that  court  (the  Supreme 
Court ) ,  bear  my  commission.  ...  I  believe  these  deci- 
sions (Standard  Oil  and  American  Tobacco  Co.  decisions)  have 
done,  and  will  continue  to  do  great  good  to  all  the  business 
of  the  country  and  that  they  have  laid  down  a  line  of  dis- 
tinction which  it  is  not  difficult  for  honest  and  intelligent 
business  men  to  follow." 


102         :OUK  JUDICIAL  OLIGARCHY 

do  so.  Even  those  who  rejoice  at  a  construction  of 
the  anti-tnist  law  which  practically  destroys  it, 
generally  conceded  that  the  Court  was  obliged  to 
legislate  in  order  to  reach  the  desired  end.  Mr. 
Justice  Grosscup  of  the  United  States  Circuit  Court 
of  Appeals,  in  writing  of  the  decisions  said :  ^^ 

"  It  would  be  mere  hypocrisy  to  say  that  the  court 
has  not  turned  upon  itself.  What  the  court  fourteen 
years  ago  said  was  not  in  the  act  the  court  now  says  is 
in  the  act.  Meantime,  not  a  letter  of  the  act  has  been 
changed.  What  has  changed  is  the  attitude  of  the  pub- 
lic mind  —  the  public  mind,  informed  by  this  fourteen 
years  of  experience.  There  are  windows  in  the  Su- 
preme Court  room  from  which  what  is  going  on  in  the 
world  outside  is  in  plain  sight." 

Again  the  same  eminent  jurist  says :  ^^ 

"  From  the  view-point  of  a  larger  number  of  those  to 
whom  this  inquiry  is  a  matter  of  deep  concern,  perhaps 
a  large  majority  yet,  the  Sherman  Act,  as  it  now  stands 
interpreted,  will  look  like  a  gun  from  which  the  load 
has  been  extracted.  As  a  weapon  it  will  look  disman- 
tled. As  a  mere  weapon  it  is  dismantled.  If  in  the 
interests  of  the  ordinary  man  these  modern  economic 
methods  and  tendencies  must  be  overhauled  and  de- 
stroyed—  if  union  of  effort  and  capital  solely  because 
it  is  effort  and  capital  in  union  must  be  circumvented  — 

s'^  North  American  Revieic,  July,  1911,  Vol.  CXCIV,  No. 
1,  p.  3. 

38  7(Z.,  p.  9. 


.WHY  THE,  PEOPLE  DISTRUST       103 

this  latest  decision  has  drawn  the  load  of  the  only  gun 
thus  far  trained  against  the  enemy." 

Mr.  James  M.  Beck,  for  many  years  the  United 
States  Attorney  for  the  Eastern  District  of  Penn- 
sylvania, and  Assistant  Attorney-General  of  the 
United  States,  after  pointing  out  the  hardships  in- 
volved in  enforcing  the  Anti-Trust  Act  as  it  was  writ- 
ten, has  this  to  say :  ^^ 

"  Such  was  the  real  crisis  which  confronted  the  Su- 
preme Court  when  it  considered  the  Standard  Oil  and 
Tobacco  cases.  It  could  do  little  to  save  a  dangerous 
situation  unless  it  was  prepared  to  disregard  its  own 
precedents  and  conform  the  interpretation  of  the  statute 
to  the  reasonable  necessities  of  the  American  people  and 
the  obvious  tendencies  of  an  age  preeminently  of  com- 
bination. It  chose  a  course,  difficult  to  justify,  as  Jus- 
tice Harlan's  powerful  dissenting  opinion  well  shows, 
on  strictly  technical  grounds,  and  with  due  regard  to 
the  principle  of  stare  decisis,  but  amply  justified  upon 
the  broader  consideration  of  the  public  welfare." 

Again  he  says :  '^^ 

"  Chief  Justice  White,  in  my  judgment  the  ablest 
dialectician  of  the  Supreme  Court  since  Marshall's  time, 
justifies  the  assumption  of  legislative  power  to  deter- 
mine what  is  reasonable  in  the  matter  of  economics  by 
referring  to  the  fact  that  the  courts  have  heretofore  de- 

39  Zd.,  p.  60.  ioid.,  p.  64. 


104.         OUE  JUDICIAL  OLIGAECHY 

termined  whether  a  litigant  has  been  found  guilty  of 
fraud." 

Of  this  reasoning  Mr.  Beck  says : 

"  I  confess  that  I  cannot  follow  the  analogy." 

Mr.  Samuel  Untermyer,  a  well  known  organizer  of 
and  counsel  for  many  corporations,  says :  '^  ^ 

"  That  the  Court  has  retraced  its  steps  and  has  unsaid 
and  undone  much  of  what  was  decided  in  the  Trans- 
Missouri  and  Joint  Traffic  Association  cases  is,  however, 
hardly  open  to  discussion.  .  .  .  With  all  due  re- 
spect to  that  august  tribunal  which  the  members  of  the 
Bar  so  justly  revere,  the  progressive,  constructive  policy 
which  we  so  profoundly  admire,  one  is  at  times  dis- 
posed to  regret  that  the  traditions  of  the  Court  do  not 
seem  to  permit  that  it  admit  its  fallibility  and  frankly 
announce  that  it  has  decided  to  reject,  overrule,  or 
change  the  law  laid  down  in  its  earlier  decisions,  when 
that  is  in  fact  its  real  purpose,  instead  of  resorting  to 
circumlocution  and  to  distinctions  that  do  not  always 
distinguish.  .  .  .  We  may,  if  we  please,  criticise 
and  denounce  that  exercise  of  power  as  judicial  legisla- 
tion and  as  being  in  theory  lawless  and  dangerous  and 
contrary  to  the  spirit  of  our  institutions,  as  Mr.  Justice 
Harlan  and  other  eminent  jurists  of  that  great  Court 
have  from  time  to  time  arraigned  it." 

But  Mr.  Untermyer  concludes  that  the  end  justi- 
fies the  means  and  says  he  desires  to  add  his  "  tribute 

41 /d.,  pp.  78-9. 


WHY  THE  PEOPLE  DISTRUST       105 

to  the  Court  for  its  broad  and  statesmanlike  construc- 
tion of  the  Sherman  Law." 

It  is  safe  to  say  that  when  gentlemen  like  the  fore- 
going frankly  concede  that  the  Court  is  exercising 
legislative  power,  the  mass  of  people  will  soon  recog- 
nize the  same  fact.  Then  it  will  follow,  that  since 
judges  legislate,  they  will  be  treated  as  legislators. 
They  will  be  criticized  frankly  and  freely.  They 
will  learn  what  the  public  sentiment  demands,  not 
through  their  "  windows "  but  through  their  doors. 
They  will  be  elected  and  not  appointed.  Their  terms 
of  office  will  be  brief.  Their  views  on  questions 
likely  to  come  before  them  will  be  known  and  pro- 
claimed in  advance.  All  this  must  follow  the  con- 
viction in  the  public  mind  that  judges  have,  in  effect, 
become  legislators.  If  this  is  revolutionary,  the 
judges  are  the  revolutionists. 


CHAPTER  y, 

WHY  THE  PEOPLE  DISTRUST  THE  COURTS 

(D)     The  poor  man  is  not  on  an  equality  with  the  rich  one 
before  the  courts. 

THE  above  statement,  whicn.  is  imiformly  ac- 
cepted as  true,  is  the  most  serious  of  the  charges 
against  the  courts.  The  manner  in  which  the  courts 
come  by  the  powers  they  exercise  would  excite  less 
comment  if  the  power  itself  had  been  used  only  for  the 
public  good.  It  would  be  easier  to  forget  that  the 
Constitution  gives  the  courts  no  power  to  invalidate 
acts  of  Congress  if  such  power  had  been  exercised 
solely  to  protect  the  people  from  harsh  and  unpopular 
measures.  If  it  were  generally  believed  that  laws 
were  improved  by  judicial  amendment,  the  exercise 
by  the  courts  of  the  power  to  amend  statutes  might 
be  regarded  as  less  dangerous,  but  the  belief  that  the 
acts  of  the  Judiciary  in  amending  statutes  are  almost 
always  exercised  in  behalf  of  special  interests  and 
intended  to  defeat  the  popular  will,  adds  bitterness 
to  the  public's  condemnation  of  judicial  legislation. 
Wealth  has  certain  legitimate  advantages  in  litiga- 
106 


.WHY  THE.  PEOPLE  DISTEUST       107, 

tion  which  cannot  be  overcome.  So  long  as  the  rich 
litigant  can  employ  better  counsel,  prepare  his  case 
better,  and  endnre  more  easily  the  "  law's  delays  "  he 
will  always  have  great  advantage  over  his  poorer  op- 
ponent. This  subject,  however,  we  are  not  discuss- 
ing, and  it  is  poor  service  to  the  cause  of  judicial 
reform  to  point  out  these  conditions  as  constituting 
real  grounds  of  complaint  against  the  courts.  But 
it  would  seem  that  judges,  mindful  of  this  inherent 
inequality,  would  have  sought  by  their  rulings  not  to 
increase,  even  if  they  did  not  lessen,  the  already  great 
advantage  of  the  more  powerful  party.  This  appears 
not  to  have  been  the  case.  The  complaint  against 
the  courts  at  this  point  is  much  more  fundamental 
than  any  matter  of  procedure,  or  expense,  or  delay. 

The  charge  against  the  courts  is  that  their  judges 
habitually  think  in  the  terms  of  the  rich  and  power- 
ful. 

The  training,  sympathies,  experiences  and  general 
view  of  life  of  most  judges  has  made  this  inevitable. 

The  process  of  thinking,  always  on  the  side  of 
vested  interests,  of  the  established  order,  and  of  the 
powerful  individuals  and  corporations  continued 
through  a  centuiy  has  built  up  a  system  of  law 
barbarous  in  its  injustice  and  inequality. 

It  would  be  hard  to  imagine  a  case  decided  a  hun- 
dred years  ago  involving  the  relative  rights  and 
duties  of  capital  and  labor,  or  of  employer  and  em- 


108         OUR  JUDICIAL  OLIGAECHY 

ploye,  which  ought  to  be  a  precedent  or  controlling 
authority  upon  the  same  questions  to-day. 

Yet  the  fact  is,  that  the  courts  have  not  only  held 
tenaciously  to  the  old  dogmas,  but  have  extended  the 
hard  rules  of  law  then  applicable  to  the  controversies 
mentioned,  so  as  to  make  them  bear  more  heavily 
upon  the  poorer  and  weaker  classes. 

Not  only  this,  but  when  Congress  and  Legislatures 
have  intervened  to  abolish  the  hardships  of  the  old 
rules  of  law  by  humane  statutes,  the  courts,  as  we 
have  seen,  have  constantly  thwarted  the  legislative 
intent,  by  invalidating  many  of  such  laws  and  by 
misinterpreting  others. 

The  decision  of  long  ago  Has  become  the  precedent 
for  to-day.  The  mere  suggestion  of  a  judge  in  one 
case,  not  necessary  to  its  decision,  is  seized  upon  and 
set  forth  as  the  law  of  the  next.  Principles  applied 
to  the  facts  of  one  case  are  carried  over  and  made 
to  decide  another  case  with  very  different  facts. 
And  always  the  process  has  gone  on  discriminating 
in  favor  of  the  strong  and  wealthy,  and  against  the 
poor  and  weak.  This  process  has  continued,  until  the 
complaint  to-day  is  directed,  not  against  the  "  bad 
law  "  of  .the  erroneous  decision,  but  against  the  "  good 
law  "  of  the  correct  decision.  It  is  not  the  occasional 
decision,  contrary  to  precedent,  that  works  the  in- 
justice, but  the  uniform  current  of  decisions  in  line 
with  the  precedents. 


WHY  THE  PEOPLE  DISTEUST       109 

Pl-esident  Lincoln  said :  ^ 

"  Labor  is  prior  to  and  independent  of  capital.  Capi- 
tal is  only  the  fruit  of  labor  and  could  never  have  ex- 
isted if  labor  had  not  existed  first.  Labor  is  the 
superior  of  capital  and  deserves  much  higher  considera- 
tion." 

The  above  sentiment  of  President  Lincoln,  im- 
doubtedly  expresses  the  conviction  of  the  American 
public,  to-day,  even  better  than  when  it  was  uttered. 
Yet  the  converse  of  that  sentiment  fairly  states  the 
attitude  of  the  courts;  and  it  is  the  decisions  neces- 
sary to  fortify  and  defend  that  attitude  which  have, 
in  a  large  measure,  bred  a  popular  distrust  of  the 
courts,  the  more  serious  because  largely  suppressed. 

Since  what  I  am  saying  is  a  matter  of  record,  and 
not  of  opinion,  I  will  let  the  cases  speak  for  them- 
selves, using  those  which  illustrate  the  condition  of 
the  law  as  applied  to  employer  and  employe,  or  (to 
use  the  language  of  the  books)  master  and  servant; 
disputes  between  labor  and  capital  and,  what  for 
want  of  a  better  term,  is  usually  described  as  vested 
interests. 

In  1837,  there  lived  in  one  of  the  rural  com- 
munities of  England,  a  butcher  named  Eowler.  He 
seems  to  have  followed  his  worthy  occupation  with 
some  success,  for  at  the  time  mentioned,  his  business 
had  prospered  to  the  point  where  he  employed  two 

1  Message  to  Congress,  Dec,  1861. 


110         QUE  JUDICIAr  OLIGAECHY, 

servants  in  it,  and  owned  a  cart  and  horse  used  to 
peddle  meat  to  his  various  patrons.  The  name  of 
one  of  the  servants  which  has  been  immortalized  in 
the  law  books  was  Priestley.  At  the  time  mentioned, 
Priestley  and  his  fellow  servant,  were  engaged  in 
driving  the  cart  of  Mr.  Powler,  loaded  with  meat, 
along  the  road  in  their  work  of  supplying  the  cus- 
tomers. The  cart  suddenly,  and  without  any  warn- 
ing, broke  down,  and,  we  are  informed,  one  of  the 
legs  of  Mr.  Priestley,  who  was  at  the  time  riding  on 
the  cart,  was  thereby  severely  injured.  Mr.  Priestley 
sued  Mr.  Powler  in  the  Courts  of  England  to  recover 
damages  for  the  injury  to  his  leg.  He  was  the  first 
employe  or  servant  who  ever  had  the  hardihood  to 
bring  an  action  under  the  English  law  to  recover 
damages  from  his  master,  on  any  similar  state  of 
facts.^  Mr.  Priestley  in  his  complaint  stated.  (I 
quote  from  the  case)  — 

"  That  the  plaintiff  was  the  servant  of  the  defendant 
in  his  trade  as  a  butcher.  .  .  .  That  the  defendant 
did  not  use  proper  care  to  see  that  the  van  (butcher's 
cart)  was  in  a  proper  state  of  repairs,  and  was  not 
overloaded;  and  that  in  consequence  of  the  defendant's 
neglect  in  each  of  his  duties,  the  van  gave  way  and 
broke  down  and  the  plaintiff  was  thrown  to  the  ground," 

and  his  leg  injured,  etc.  The  jury  gave  a  verdict 
for  the  plaintiff  for  one  hundred  pounds.     The  Judge, 

2  Priestley  v.  Fowler,  3  Mee.  &  Well.,  p.  1. 


WHY  THE  PEOPLE  DISTEUST       111 

however,  arrested  the  judgment,  or,  as  we  would  say, 
set  the  verdict  aside.  This  action  of  the  judge  was 
held  proper  on  the  appeal.  Lord  Abinger,  who  wrote 
the  opinion  on  the  appeal,  said: 

"  It  is  admitted  that  there  is  no  precedent  for  the 
present  action  by  a  servant  against  a  master.  We  are, 
therefore,  to  decide  the  question  upon  the  general  prin- 
ciples, and  in  doing  so  we  are  at  liberty  to  look  at  the 
consequences  of  a  decision  the  one  way  or  the  other.  If 
the  master  be  liable  to  the  servant  in  this  action,  the 
principle  of  that  liability  will  be  found  to  carry  us  to 
an  alarming  extent.  ...  If  the  owner  of  the  car- 
riage is  therefore  responsible  for  the  suflBciency  of  his 
carriage  to  his  servant,  he  is  responsible  for  the  negli- 
gence of  his  coach  maker,  or  for  a  defect  in  the  harness 
arising  from  the  negligence  of  the  harness  maker,  or 
for  drunkenness,  negligence,  or  want  of  skill  in  the 
coachman.  .  .  .  The  master,  for  example,  would  be 
liable  to  the  servant  for  the  negligence  of  a  chamber- 
maid for  putting  him  into  a  damp  bed.  .  .  .  The 
inconvenience,  not  to  say  the  absurdity,  of  these  conse- 
quences affords  a  sufficient  argument  against  the  appli- 
cation of  this  principle  to  the  present  case.  .  .  .  He 
(the  master)  is  no  doubt  bound  to  provide  for  the  safety 
of  his  servant  in  the  course  of  his  employment  to  the 
best  of  his  judgment,  information  and  belief.  The 
servant  is  not  bound  to  risk  his  safety  in  the  service 
of  the  master,  and  may,  if  he  thinks  fit,  decline  any 
service  in  which  he  reasonably  apprehends  injury  to 
himself;  and  in  most  of  the  cases  in  which  danger  may 


112        OUR  JUDICIAL  OLIGAECHY 

be  incurred,  if  not  all,  he  is  just  as  likely  to  be  ac- 
quainted with  the  probability  and  extent  of  it  as  the 
master.  ...  In  fact,  to  allow  this  sort  of  an  action 
to  prevail  would  be  an  encouragement  to  omit  that 
diligence  and  caution  which  he  is  in  duty  bound  to 
exercise  on  the  behalf  of  his  master  to  protect  him 
against  the  misconduct  or  negligence  of  others  who 
serve  him." 

With  this  decision,  there  was  bom  into  the  world  of 
the  English  Law  the  twin  propositions,  first:  that  a 
servant  or  employe  must  be  held,  when  he  enters  the 
employ  of  another,  to  have  assumed  the  risks  of  such 
employment,  and  second:  that  the  master  is  not  liable 
for  damage  to  one  servant  or  employe,  caused  by  the 
negligence  of  a  fellow  servant  or  employe.  These 
principles  of  law,  thus  originating,  were  carried  to 
this  country  the  following  year  ^  and  soon  became  the 
law  of  the  land. 

These  principles  of  law,  devised  by  an  English 
Judge  nearly  a  hundred  years  ago,  in  order  to  pro- 
tect a  master  from  liability  for  injury  to  his  servant 
caused  by  the  breaking  of  the  horse  cart  on  which  he 
was  riding,  as  applied  by  our  courts,  have  saved  count- 
less millions  of  dollars  to  the  employing  classes  in 
this  country,  while  they  have  killed  and  made  paupers 
of  untold  thousands  of  laborers  and  their  wives  and 

3  Farwell  v.  Boston  and  Worcester  R.  R.  Corporation,  4 
Mete.  (Mass.),  49;  Brown  v.  Maxwell,  6  Hill  (New  York), 
592-4. 


WHY  THE  PEOPLE  DISTKUST      113 

children.  These  principles,  as  applied  by  our  courts 
have  bred  in  some  of  the  employing  classes,  a  reckless 
and  wanton  disregard  of  the  safety  and  lives  of  tho 
employed,  and  have  aroused  in  the  latter  a  class 
hatred  which  is  a  constant  menace  to  our  society  and 
government.  I^o  one  can  estimate  the  suffering,  or 
count  the  army  of  the  dead  and  crippled,  bom  of 
these  dogmas  of  a  primitive  industrial  time.  I  quote 
from  the  recent  report  of  the  American  Association 
for  Labor  Legislation,'*  where,  referring  to  the  sta- 
tistics of  railway  casualties  compiled  for  the  year 
1910,  it  is  said: 

"  We  find  that  nine  men  were  killed  each  twenty-four 
hours,  and  that  one  was  injured  or  killed  every  seven 
minutes.  To  be  specific  as  to  casualties  as  they  occur 
in  the  engine,  train,  and  yard  service,  is  to  say  that  one 
man  was  killed  for  each  two  hundred  and  five  employed, 
and  one  was  injured  for  every  nine  employed." 

War  is  safe  compared  to  railroading  iu  this  coun- 
try.    I  continue  the  quotation: 

"What  do  the  railways  pay?  No  one  knows;  but  it 
is  reasonable  to  say  that  ten  per  cent,  of  injuries  and 
deaths  for  which  compensation  is  paid,  is  the  answer, 
and  the  average  amount  paid  is  low.  .  .  .  The 
miners  claim  that  four  men  are  killed  in  America  to 
one  in  Europe,  and  it  is  admitted  that  mining  ordinarily 

A  Publication  No.  12,  p.  43,  proceedings  of  the  Fourth  An- 
nual Meeting,  January,  1911. 


114        OUE  JUDICIAL  OLIGAECHY 

and  normally  ought  to  be  accompanied  with  less  danger 
here  than  abroad.  Structural  iron  and  steel  workers 
and  electrical  workers  stand  a  heavy  loss  in  death  and 
disability  only  to  be  guessed  at  in  the  total,  for  we  lack 
full  statistics  covering  these  occupations.  It  has  been 
estimated  that  annually  four  thousand  Pennsylvania 
miners  are  killed  or  injured,  and  the  records  of  Alle- 
gheny County,  in  which  the  great  iron  and  steel  indus- 
tries of  the  Pittsburg  district  are  located,  showed  ten 
thousand  casualties  a  year,  a  large  proportion  of  which 
were  deaths  or  total  disablements,  and  eighty  per  cent, 
of  which  were  inflicted  upon  men  under  forty  years  of 
age.  Few  of  these  casualties  have  hope  of  recovery  be- 
cause no  one  was  at  fault,  and  the  others  have  been 
divided  among  a  half  dozen  causes,  few  of  which  con- 
tained hope  of  recovery  from  the  courts." 

The  laborer  assumed  the  risk  of  the  employment. 
From  the  same  report  I  quote  again :  ^ 

"  A  system  of  almost  perfect  mechanical  production 
has  been  installed,  and  the  man  must  keep  pace  with  it. 
So  much  must  be  produced  per  man,  per  machine  per 
hour,  and  the  man  knows  if  he  falls  below  the  minimum 
of  production  he  will  lose  his  job,  and  a  job  is  a  job 
even  in  this  land  of  opportunity.  He  knows  the  inex- 
orable rule.  The  result  is  that  to  change  a  gear,  shift 
a  belt,  adjust  a  feed,  or  any  one  of  the  thousands  of 
ways  that  are  offered  the  man  to  take  a  chance  and  keep 
his  machine  going  without  loss  of  time,  are  accepted  at 

5  P.  45. 


WHY  THE  PEOPLE  DISTEUST       115 

the  price  of  safety,  and  he  pays  the  price.  The  em- 
ployer pays  nothing.  The  occupational  diseases  that 
must  be  assumed  by  the  employe,  of  which  there  is 
really  no  record,  must  be  considered  among  the  casual- 
ties, although  they  have  little  hope  of  compensation. 
All  of  them  add  to  the  burden  of  general  human  misery 
arising  from  suspended  or  decreased  wages.  So  we  say 
advisedly,  until  sane  rules  of  employment  regulate  in- 
dustry, until  it  costs  more  to  kill  a  man  than  to  protect 
him,  until  the  man  and  the  machine  are  brought  closer 
to  the  relative  endurance  of  each  other,  and  safety  de- 
vices are  installed  that  automatically  will  prevent  acci- 
dents, we  shall  have  an  annual  casualty  roll  that  will 
warrant  a  repetition  of  the  statement,  that  the  mines  are 
stained  with  the  blood  of  their  victims ;  every  skyscraper 
is  cemented  with  the  blood  and  brawn  of  its  builders; 
every  large  enterprise  is  baptized  in  the  blood  of  its 
workmen. 

"  Does  it  not  appeal  to  you  that  there  is  an  underlying 
cause  other  than  negligence  that  is  responsible  for  the 
casualty  record?  That  a  man  works  for  another  does 
not  mean  that  he  is  indifferent  to  physical  and  mental 
pain.  The  general  toll  of  industry  is  estimated  at  any- 
where from  one-half  million  upward  annually,  but  we 
are  unable  to  do  more  than  estimate,  for  outside  of  rail- 
ways no  reliable  statistics  are  available.  ...  In  a 
general  way  we  realize  what  it  means  to  the  man  who 
is  left  helpless  and  hopeless.  One  can,  in  a  way, 
imagine  the  physical  suffering  which  we  believe  can  in 
part  be  compensated,  but  God  alone  knows  the  mental 
depths  of  despair  to  which  the  one  time  physically  per- 


116         CUE  JUDICIAL  OLIGAECIIYi 

feet  man  is  plunged  when  disability  overtakes  and 
threatens  his  earning  capacity,  for  in  this  day  he  knows 
when  he  cannot  work  he  becomes  a  pauper.  I  have  seen 
strong  men  weep  like  children  when  they  were  out  of 
work  temporarily,  and  their  families  were  forced  to  lim- 
ited living.  What  must  it  mean,  then,  to  the  one  who 
in  a  moment  knows  he  is  done  forever?  .  .  .  It  is 
inhuman  to  compel  the  employe  to  accept  the  responsi- 
bility for  accident  in  exchange  for  the  opportunity  to 
work.  That  responsibility  belongs  exclusively  to  the 
employer. 

"  American  industry  has  been  protected  in  every  way 
possible  by  law  and  court  decision,  but  the  employes, 
the  foundation  of  American  industry,  have  been  thrown 
aside  as  scrap,  and  their  bruised  and  broken  bodies  added 
to  the  long  roll  of  human  wreckage  to  attest  to  the  un- 
recompensed  sacrifices  made  in  its  behalf." 

Had  the  doctrine  of  Priestley  v.  Fovt^ler  been  con- 
fined to  the  facts  or  situation  involved,  it  would  have 
done  little  harm  and  would  now  be  merely  one  of  the 
curiosities  of  the  law.  But  our  courts  have  taken  the 
doctrine  of  that  case,  and  made  it  control  and  decide 
cases  differing  from  it  in  their  facts  as  much  as  the 
simple  butcher's  cart,  drawn  by  a  horse  to  furnish 
meat  to  the  countryside,  differs  from  the  modem  ice- 
packed  refrigerator  car  which  traverses  a  continent 
in  a  few  hours.  Under  the  rule  of  assumed  risk,  the 
courts  say  that  the  section  hand  injured  by  collision 
with  a  wild  engine,  of  the  approach,  of  wMch  he  had 


SVHY  THE  PEOPLE  DISTEUST      117 

no  warning,  cannot  recover,  for  this  is  one  of  the  risks 
of  the  business.^ 

Coupling  cars  in  motion  is  a  risk  brakemen  mnst 
assumed  Failure  of  the  railroad  to  maintain  gates 
or  signals  at  a  crossing,  although  required  to  do  so, 
is  a  risk  the  trainmen  must  assume,  if  they  might 
have  known  of  the  company's  omission.^  Any  un- 
safe and  careless  custom  of  the  employer,  if  open  to 
the  observation  of  an  employe,  in  the  opinion  of  a 
Court  who  considers  the  matter  after  the  accident,  is 
a  risk  the  employe  must  assume.^  Railroad  em- 
ployes must  assume  the  risk  of  being  killed  by  struc- 
tures or  obstructions  maintained  dangerously  near  the 
track  if  a  Court  can  say  they  had  notice  of  the 
danger. ^/^  Passing  frequently  on  a  rapidly  moving 
train,  while  engaged  in  his  duties,  an  object  danger- 
ously near  the  track,  enables  the  Court  to  say  that  the 
employe  had  notice  of  the  danger.  ^^  Improper  ven- 
tilation of  tunnels  is  a  risk  to  be  assumed  by  the 
workmen  therein. ^^  If  the  employe  has  merely  what 
the  court  calls  "  means  of  knowing  the  dangers  in- 

6  Sullivan  v.  Fitchburg,  etc.,  R.  R.  Co.,  161  Mass.  125. 

7  Ferguson  v.  Central  la.  Ry.,  58  la.  293. 

8  Bancroft  v.  Boston  &  Me.  Ry.  (N.  H.),  30  Atl.  409. 
»  Hughes  V.  Winona  &  St.  P.  Ry.  Co.,  27  Minn.  137. 

loQaffney  v.  N.  Y.,  etc.,  Ry.,  15  R.  I.  456;  Needham  v. 
Louisville,  etc.,  Ry.,  85  Ky.  423 ;  Perigo  v.  C.  R.,  etc.,  Ry.,  52 
la.  276 ;  Sisco  v.  L.  &  H.  Ry.,  145  N.  Y.  296. 

11  Boyd  V.  Harris   (Pa.  St.),  35  Atl.  222. 

12  Bait.  &  P.  Ry.  Co.  v.  State,  75  Md.  152. 


118'         OUR  JUDICIAL  OLIGAECHY 

volved  "  he  is  deemed  to  assume  the  risk  of  all  such 
dangers  and  to  have  waived  any  claim  against  the 
Master  for  injuries  resulting  therefrom.^^ 

Even  statutes  requiring  dangerous  machinery  to  he 
covered  or  guarded  may  be  disobeyed  by  the  em- 
ployer, and  little  children  employed  about  such  un- 
garded  machinery  are  held  to  have  assumed  the  risk.^* 
The  same  rule  applies  to  women. ^^  Even  a  statute 
declaring  that  "  the  question  whether  the  employe 
understood  and  assumed  the  risk "  shall  be  one  of 
fact,^^  will  be  disregarded  by  the  courts  if  only  the 
danger  is  obvious  enough.  ■^''^ 

Similarly  applying  the  fellow  servant  rule,  the 
courts  declare  that  the  mechanic  in  the  shop,  and  the 
engineer  on  the  engine  are  fellow  servants,  so  that 
the  latter  cannot  recover  for  injuries,  if  they  are 
caused  by  the  negligence  of  the  former.  ^^  The  con- 
ductor on  a  train,  and  the  foreman  of  a  section  crew 
are  fellow  servants  for  the  purpose  of  preventing  re- 
covery by  the  latter  against  the  company  for  injuries 
caused  by  the  conductor's  negligence.*®     The  fellow 

13  Crown  V.  Orr,  140  N.  Y.  450;  Davidson  v.  So.  Pac.  Co.,  44 
Fed.  476. 

i4Higgins  V.  O'Keefe,  79  Fed.  900;  White  v.  Wittemann 
Lith.  Co.,  131  N.  Y.  631. 

15  Knisley  v.  Pratt,  148  N.  Y.  372. 

16  Sec.  3,  Chapt.  600,  N.  Y.  laws  of  1902. 

17  Milligan  v.  Clayville  Kn.  Co.,  137  App.  Div.  383. 

18  Mobile,  etc.,  Ry.  v.  Thomas,  42  Ala.  672. 

18  So.  Pac.  Ry.  v.  McGill   (Ariz.),  44  Pac.  302. 


WHY  THE  PEOPLE  DISTRUST      111> 

servant  nile  prevents  recovery  for  the  death  of  miners 
who  are  killed  by  the  explosion  of  fire  damp  ignited  by 
an  employe  but  negligently  and  knowingly  permitted 
by  the  owner  of  the  mines  to  aceumulate.^^  The  fire- 
man on  his  locomotive  is  a  fellow  servant  of  a  train 
despatcher,  though  they  may  be  thousands  of  miles 
apart.^^ 

So  also  a  track  inspector,  whose  negligent  inspec- 
tion of  the  track  causes  the  train  to  fall  through  a 
bridge  and  kills  the  engineer  is  the  fellow  servant  of 
the  latter,  and  the  railway  company  is  not  liable. ^^ 
Even  the  foreman  of  the  laborers,  with  full  power  to 
hire  and  discharge  and  superintend  the  work  is  a  fel- 
low servant  with  them,  when  the  latter  are  killed  or 
injured  by  the  foreman's  negligence,  and  the  company 
therefore  is  not  liable.-^ 

So  the  list  might  be  indefinitely  extended,  showing 
how  the  courts  have  built  up  a  body  of  law  to  pro- 
tect the  employing  classes  from  liability  for  injuries 
to  their  employes,  which  a  humane  and  enlightened 
public  sentiment  long  ago  became  convinced  the  em- 
ployers should  bear.  That  England,  wherein  the 
doctrine  of  assumed  risk  and  the  fellow  servant  rule 

20  Berns  v.  Coal  Co.,  27  W.  Va.  285. 

2iMillsaps  V.  Louisville,  etc.,  Ry.,  69  Miss.  423;  N.  0.  J. 
&  G.  N.  R.  R.  Co.  V.  Hughes,  49  Miss.  258,  289. 

22  Warner  v.  Erie  Ry.,  39  N.  Y.  468. 

23  N.  Pac.  R.  R.  Co.  v.  Peterson,  162  U.  S.  346.  See  also,  N. 
Pac.  R.  R.  Co.  V.  Charless,  162  U.  S.  359. 


120        QUE  JUDICIAL  OLIGAECHY 

originated,  long  ago  discarded  both,  seems  to  have 
meant  nothing  to  our  courts.^'* 

The  next  great  service  of  the  courts  to  the  em- 
ploying class  was  in  nullifying  and  destroying  stat- 
utes, state  and  federal,  passed  to  correct  the  injustice 
and  barbarities  of  the  old  law,  as  applied  to  the  la- 
boring classes.  In  the  footnote  I  set  out  a  few  of 
the  many  cases  in  addition  to  these  already  noted 
illustrating  the  extent  to  which  the  courts  have  gone 
to  break  down  this  kind  of  legislation.^^  Every 
State  in  the  Union  which  has  passed  progressive 
labor  legislation,  such  as  the  Factory  Acts,  looking 
to  the  protection  of  the  lives  and  health  of  workers, 
and  statutes  changing  the  ancient  rules  of  law  relat- 
ing to  master  and  servant,  which  our  courts  have 

24  English  Employers'  Liability  Act  of  1880,  43  and  44  Vic- 
toria, Chapt.  42. 

25Nappa  V.  Erie  Ry.  Co.,  195  N.  Y.  176,  184;  Guilmartin 
V.  Solvay  Process  Co.,  189  N.  Y.  490,  494;  Gallagher  v,  New- 
man, 190  N.  Y.  444,  447-8;  Hope  v.  Scranton  &  Lehigh  Coal 
Co.,  120  A.  D.  595;  Cashman  v.  Chase,  156  Mass.  342;  Quinlan 
V.  Lackawanna  Steel  Co.,  107  A.  D.  176,  affirmed  191  N.  Y. 
329;  Finnigan  v.  N.  Y.  Contracting  Co.,  194  N.  Y.  244;  Baker 
V.  Empire  Wire  Co.,  102  A.  D.  125. 

In  New  York  it  is  necessary  to  constantly  amend  the  labor 
statutes  in  order  to  keep  up  with  the  decisions  of  the  courts. 
See  also,  articles  in  Bench  &  Bar  for  April,  1908,  13  Bench  & 
Bar,  p.  17;  also  article  on  the  "Recent  Amendment  of  the 
Labor  Law,"  Bench  &  Bar  for  August,  1910,  22  Bench  <&  Bar, 
p.  45.  Carl  v.  Bangor,  etc.,  Ry.  Co.,  43  Me.  269;  Lutz  v. 
Atlantic,  etc.,  Ry.  Co.,  53  Am.  and  Eng.  Ry.  cases,  478;  Proc- 
tor V.  Ry.,  64  Mo.  112. 


WHY  THE  PEOPLE  DISTRUST      121 

applied  to  employers  and  employes,  will  fiimish 
many  other  illustrations  of  judicial  hostility  to  this 
kind  of  legislation. 

It  is  at  this  point  that  the  issue  between  the  people 
and  the  courts  has  become  clearly  defined. 

So  long  as  the  judges  confined  themselves  to  deal- 
ing in  general  principles,  and  were  always  able  to 
cite  some  previous  case  which  seemed  to  excuse  the 
decision  in  the  case  at  hand,  the  public  suspended 
judgment,  and  thought  possibly  the  courts  were 
bound  by  precedents,  and  that  they  might  be  ex- 
cused for  adhering  to  the  ancient  and  discredited 
rules  of  law. 

But  when  after  much  agitation  and  extended  in- 
vestigation, plain  statutes  were  passed,  correcting  the 
abuses  of  the  old  laws,  and  the  people  saw  those 
statutes,  again  and  again,  either  nullified  by  the 
courts  entirely,  or  so  interpreted  as  to  make  them  fail 
of  their  purpose,  the  period  for  suspended  judgment 
ended  and  the  public  made  up  its  mind. 

The  public  believes  now  that  the  courts  are  against 
those  progressive  measures  and  policies  which,  the  ma- 
jority of  the  people  favor. 

While  a  number  of  individual  judges,  particularly 
some  of  those  on  the  Federal  Bench,  have  recently 
been  subjected  to  severe  criticism  for  their  decisions 
in  labor  cases,  I  feel  that  this  is  a  superficial  view. 
Some  judges  are,  of  course,  more  reactionary  than 
others,  but  the  fact  is  that  with  a  few  great  excep- 


122         OUR  JUDICIAL  OLIGARCHY; 

tions,  the  bench,  as  a  whole,  has  shown  itself  not  only 
out  of  sympathy  with  the  new  economic  and  industrial 
legislation  of  the  country,  but  positively  hostile  to 
it. 

In  Volume  42  of  Studies  in  History,  Economics 
and  Public  Laws,  edited  by  the  Faculty  of  Polit- 
ical Science  of  Columbia  University  and  published 
in  1911,  George  Gorham  Groat,  Ph.D.,  discusses  at 
great  length,  the  "  Attitude  of  American  Courts  in 
Labor  Cases." 

This  work  is  very  conservative,  and  deals  princi- 
pally with  the  attitude  of  the  courts  in  those  labor 
cases,  where  the  principles  of  law  have  not  yet  been 
settled ;  consequently  the  author  is  able  to  write  hope- 
fully of  some  of  the  rules  of  law,  which  he  thinks 
the  courts  may  finally  declare  applicable  to  this  class 
of  litigation.  At  page  360,  however,  the  author 
says: 

"  If  the  differences,  the  confusion,  the  conflicting  de- 
cisions and  the  general  feeling  of  dissatisfaction  are  to 
any  extent  to  be  removed,  these  facts  must  be  realized. 
First,  it  is  undeniable  that  a  certain  theory  underlies 
the  legal  view  which  is  not  generally  accepted  outside 
of  legal  circles.  This  theory  is  that  law  is  based  on 
certain  principles  of  justice  that  are  eternal,  and  im- 
mutable. ...  A  consequence  is,  that  the  common 
law  brought  over  from  the  past,  into  the  present,  is  ex- 
pressed quite  entirely  in  phrases  that  have  but  little,  if 
any,  present  application." 


WBY.  THE  PEOPLE  DISTRUST,      123 

Continuing,  the  author  says: 

"A  second  great  fact  is  that  of  industrial  change. 
This  is  so  generally  recognized,  as  to  make  anything 
more  than  the  mere  statement  of  it,  unnecessary.  .  .  . 
Bringing  these  facts  together  —  fixed  theory  of  the  law, 
and  changing  conditions  of  society,  written  constitutions 
based  on  early  philosophy,  and  industrial  and  social 
structure,  based  on  a  later  philosophy  —  the  real  un- 
derlying nature  of  the  difficulty  appears.  Judges  are 
trained  primarily  in  the  law,  and  are  bound  by  habits 
of  thought  to  follow  the  beaten  paths  marked  out  by  the 
precedents  of  earlier  years.  Laws  (statutes)  upon  which 
they  pass  opinions,  are  on  the  contrary  essentially 
adapted  to  present  day  conditions." 

The  author  then  quotes  an  article  in  the  Columbia 
Law  Review,  Volume  3,  page  344,  May,  1905,  as  ex- 
pressive of  his  own  views,  as  follows ; 

"  To-day  for  the  first  time,  the  common  law  finds  it- 
self arrayed  against  the  people;  for  the  first  time  in- 
stead of  securing  for  them  what  they  most  prize,  they 
know  it  chiefly  as  something  that  continually  stands 
between  them  and  what  they  desire.  .  .  .  There  is 
a  feeling  that  it  (the  common  law)  prevents  everything, 
and  does  nothing.  ...  It  exhibits  too  great  a  re- 
spect for  the  individual  and  for  the  intrenched  position 
in  which  our  legal  and  political  history  has  put  him,  and 
too  little  respect  for  the  needs  of  society,  when  they 
come  in  conflict  with  the  individual,  to  be  in  touch  with 
the  present  age." 


124         OUK  JUDICIAL  OLIGARCHY 

After  a  further  discussion  of  the  unsatisfactory 
condition  of  the  law  in  labor  cases,  as  evidenced  by 
the  opinions  of  the  courts,  the  author  says : 

"  In  such  a  situation  as  has  been  outlined,  it  is  im- 
possible to  secure  with  any  promptness,  a  satisfactory 
adjustment  between  the  opinions  of  courts  and  the  needs 
of  a  live  industrial  society." 

Akin  to  the  doctrine  of  "  assumed  risk  "  and  the 
"  fellow  servant  rule  "  just  discussed,  is  the  doctrine 
of  "  contributory  negligence."  As  a  money  saving 
device,  to  employers,  this  rule  is  almost  equal  in  value 
to  the  "  assumed  risk  "  and  "  fellow  servant "  rule 
and  its  justice  seems  more  apparent.  It  sounds 
fair  to  say  that  an  employe  who,  by  his  negligence, 
brings  an  injury  upon  himself,  should  not  recover 
from  his  employer  on  account  of  such  injuiy. 
This  is  the  rule  of  contributory  negligence,  and 
when  properly  applied,  between  parties,  on  approx- 
imately equal  terms,  there  is  much  to  be  said  in 
its  favor.  It  was  intended,  of  course,  that  a  jury 
should  always  determine  the  question  of  fact,  whether 
the  plaintiff  was  guilty  of  contributory  negligence  or 
not.  The  rule,  however,  as  actually  applied  in  prac- 
tice, has  become  one  of  great  hardship  because  the 
judges  have  come  to  determine  the  question  of  negli- 
gence to  a  large  extent,  thus  really  exercising  the 
function  of  the  jury,  and  the  alternative  often  pre- 
sented to  an  employe  of  losing  his  job  or  doing  an  act 


WHY  THE  PEOPLE  DISTRUST       125 

which  can  be  called  negligent,  deprives  the  parties 
of  that  substantial  equality  which  is  necessary  to  any 
fair  application  of  the  rule. 

A  recent  rule  promulgated  by  a  leading  Railway 
Company  is  as  follows : 

"...  employes  before  they  attempt  to  make 
couplings  or  to  uncouple,  will  examine  and  see  that  the 
cars  and  engines  to  be  coupled  or  uncoupled,  couplers, 
draw-heads  and  other  appliances  connected  therewith, 
ties,  rails,  tracks  and  roadbeds,  are  in  good  safe  condi- 
tion. .  .  .  They  must  exercise  great  care  in  coup- 
ling and  uncoupling  cars.  In  all  cases,  sufficient  time 
must  be  taken  to  avoid  accident  or  personal  injury."  -^ 

N^ow  note  the  letter  of  instruction  the  superintend- 
ent in  charge  of  the  employes  of  that  Railway  sends 
out  for  the  actual  direction  of  the  men :  ^^ 

"Entirely  too  much  time  is  being  lost,  especially  on 
local  trains,  due  to  the  train  and  engine  men  not  taking 
advantage  of  conditions  in  order  to  gain  time  doing 
work,  switching  and  unloading  and  loading  freight. 
Neither  must  they  wait  until  the  train  stops  to  get 
men  in  position.  It  is  also  of  the  utmost  importance 
that  engine  men  be  alive,  prompt  to  take  signals,  and 
make  quick  moves.  In  this  respect  it  is  only  necessary 
to  call  your  attention  to  the  old  adage,  which  is  a  true 
one,  that  when  train  or  engine  men  do  not  make  good 

26  American  Labor  Legislation  Review,  Vol.  I,  No.  1,  p.  42, 
issued  by  the  American  Association  for  Labor  Legislation. 

27  Id.,  p.  43. 


126         OUR  JUDICIAL  OLIGARCnY 

on  local  trains,  it  thoroughly  demonstrates  those  men 
are  detrimental  to  the  service,  as  well  as  their  own  per- 
sonal interests,  and  such  men,  instead  of  being  assigned 
to  other  runs,  should  be  dispensed  with.  I  am  calling 
your  attention  to  these  matters  with  a  view  to  invig- 
orating energy  and  ambition,  in  order  that  your  fami- 
lies, who  arc  dependent  on  you  to  make  a  success,  shall 
not  some  day  point  the  finger  of  scorn  at  you,  and  that 
the  public  may  not  be  able  to  say,  you  lost  your  position 
due  to  the  lack  of  energy  and  interest  in  your  own  per- 
sonal welfare,  for  which  you  can  consistently  place  the 
responsibility  on  no  one  but  yourself/' 

The  rule  is  general,  and  Is  for  the  defense  of  the 
company.  The  letter  is  private,  and  is  for  the  guid- 
ance of  the  men,  and  they  soon  learn  that  it  is  the 
spirit  of  the  letter  and  not  of  the  rule  which  must 
be  obeyed,  if  they  hold  their  jobs.  The  rule  of  con- 
tributory negligence  takes  no  account  of  the  fact  that 
most  employes  to-day  do  their  work  in  the  presence 
of  the  danger,  on  the  one  hand  of  being  discharged 
if  they  take  the  time  to  be  cautious,  and  on  the  other 
hand  of  being  crippled  or  killed  if  they  act  with  the 
haste  necessary  to  secure  the  approval  of  their  su- 
periors. The  Court,  however,  determines  the  ques- 
tion of  negligence  after  the  accident  in  the  quiet  and 
comfort  and  security  of  the  court  room,  upon  "  due 
deliberation,"  and  with  all  the  facts  carefully  brought 
out,  and  the  judge  can  always  feel  sure,  that  no  mat- 
ter how  hasty  or  how  deliberate  he  may  be  in  the  mat- 


;WHY  THE  PEOPLE  DISTEUST       127 

ter,  his  job  is  secure.  Then  also,  the  courts  in  some 
of  the  States,  for  example,  !N^ew  York,  require  the 
plaintiff  in  an  action  for  personal  injuries,  to  prove 
that  the  victim  of  the  injury  was  free  from  negligence 
at  the  time  of  the  accident,  for  which  damages  were 
sought  to  be  recovered.-^  When,  therefore,  the  un- 
fortunate victim  of  the  injury  is  dead,  it  often  hap- 
pens that  no  such  proof  can  be  furnished.  After 
much  agitation,  this  rule  was  changed  by  statute  in 
New  York,  in  1910.^^  Concerning  this  change  in  the 
law,  the  Editor  of  Bench  &  Bar  recently  said :  ^^ 

"  A  fundamental  rule  in  the  law  of  negligence  in  this 
State  existing  from  the  earliest  times  is  abrogated. 
The  practical  importance  of  the  change  is  manifest. 
The  number  of  negligence  actions  which  have  failed 
through  inability  of  the  plaintiff  to  give  evidence  of  his, 
or  his  decedent's  freedom  from  contributory  negligence 
can  only  be  conjectured;  but  they  must  number  many 
hundreds." 

How  the  courts  will  deal  with  this  statute  remains 
to  be  seen. 

28  Whalen  v.  Citizens'  Gas  Light  Co.,  151  N.  Y.  70. 

29  Chapt.  352  of  the  Laws  of  1910  amending  the  Labor  Law, 
See.  202a.     The  above  section  is  as  follows: 

"  On  the  trial  of  an  action  brought  by  an  employ^  or  his 
personal  representative  to  recover  damages  for  negligence  aris- 
ing out  of  and  in  the  course  of  such  employment,  contributory 
negligence  of  the  injured  employ^  shall  be  a  defense  to  be  so 
pleaded  and  proved  by  the  defendant." 

30  Bench  &  Bar  for  August,  1910,  p.  51. 


128         OUR  JUDICIAL  OLIGARCHY 

A  recent  case  illustrating  the  length  to  which  the 
courts  have  gone  in  usurping  the  function  of  the 
jury  in  dealing  with  the  question  of  contributory 
negligence  is  that  of  Mastin  v.  City  of  New  York.^^ 
The  difference  between  the  province  of  the  Court  and 
Jury  in  this  class  of  cases  is  recognized  by  all  the 
authorities  and  is  usually  stated  as  follows: 

"  When  reasonable  and  intelligent  men  may  differ  as 
to  what  facts  have  been  established,  or  may  draw  an- 
tagonistic inferences  from  undisputed  facts,  the  case  is 
one  for  a  jury."  ^^ 

In  the  case  of  Mr.  Mastin,  above  referred  to,  it 
appears  that  in  1910,  he  was  injured  on  the  streets 
of  New  York,  by  a  vehicle  under  the  control,  and 
in  the  service  of  the  City.  The  principal  defense  of 
the  City  was  that  plaintiff  was  guilty  of  contributory 
negligence.  The  trial  judge,  however,  under  proper 
instructions,  submitted  the  case  to  the  jury,  who 
returned  a  verdict  for  the  plaintiff.  An  appeal  was 
taken  to  the  Appellate  Division,  where  the  judgment 
was  affirmed,  one  judge  dissenting.  The  City  then 
appealed  to  the  Court  of  Appeals,  which,  by  a  vote 
of  four  to  three,  held  that  as  a  matter  of  law,  the 
plaintiff  was  guilty  of  contributory  negligence,  and 
could  not  recover.  It  thus  appears  that  the  trial 
judge,  four  judges  in  the  Appellate  Division,  and 

31  Vol.  201,  N.  Y.,  p.  81. 

32  Smith  V.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  177  N.  Y.  224,  229. 


WHY  THE  PEOPLE  DISTRUST       129 

three  judges  in  the  Court  of  Appeals,  eight  in  all, 
agreed  that  the  evidence  presented  a  question  of  fact 
for  the  decision  of  a  jury,  and  one  judge  in  the  Ap- 
pellate Division  and  four  in  the  Court  of  Appeals, 
five  in  all,  held  the  contrary.  iN'evertheless,  the  de- 
cision was  that  no  question  was  presented  for  a  jury 
to  pass  upon,  thus  holding  that  reasonable  and  intel- 
ligent men  could  not  differ  as  to  what  facts  had  been 
established  or  as  to  the  inferences  which  could  be 
drawn  therefrom,  and  therefore,  that  the  plaintiff,  as 
a  matter  of  law,  was  guilty  of  contributory  negligence 
and  could  not  recover.  The  logic  of  this  decision 
seems  to  be  that  four  judges  of  the  Court  of  Appeals, 
must  have  held  that  the  eight  judges, —  three  of  the 
Court  of  Appeals,  four  of  the  Appellate  Division,  and 
the  trial  judge  —  were  not  "  reasonable  and  intel- 
ligent men,"  otherwise  it  would  not  have  been  pos- 
sible to  take  the  case  from  the  jury.  This  case  shows, 
better  than  any  extended  discussion  could  do,  the  ex- 
tent to  which  judges  have  gone  in  order  to  take  ques- 
tion of  negligence  and  contributory  negligence  from 
the  jury  and  pass  on  them  themselves. 

We  turn  now  to  another  branch  of  the  law  which, 
in  recent  years,  has  been  the  subject  of  much  contro- 
versy and  one  wherein  the  decisions  of  the  courts 
have  aroused  the  hostility  of  a  large  proportion  of  our 
people.  I  refer  to  the  decisions  relating  to  Labor 
Unions,  and  particularly  contests  between  labor  and 
capital  as  manifested  in  strikes,  boycotts,  lockouts 


130         OUR  JUDICIAL  OLIGAECHY 

and  otlier  aggressive  and  retaliatory  tactics  to  whicli 
each  side  has  resorted. 

From  the  first  "  Statute  of  Laborers  "  ^^  passed  in 
1349,  to  the  present  time,  the  law  has  always  dis- 
criminated against  those  engaged  in  manual  labor, 
or  what  we  now  call  the  "  working  classes."  This 
early  statute,  in  the  reign  of  Edward  III.,  the  first 
one  upon  the  subject,  grew  out  of  the  scarcity  of 
labor  resulting  from  the  wars  and  pestilence  of  that 
period.  It  fixed  the  wages  which  any  laborer  might 
ask  and  receive,  and  punished  with  severe  penalties 
any  laborer  who  asked  for  more  than  the  rate  fixed  by 
law,  and  any  employer  who  paid  more  than  the  law 
provided  for.  This  and  the  statute  passed  the  next 
year  provided : 

"  That  every  man  and  woman  of  what  condition  he 
be,  free  or  bond,  able  in  body  and  within  the  age  of 
three  score  years,  (if  he  have  no  means  of  his  own)  if 
he  in  convenient  service,  his  estate  considered,  be  re- 
quired to  serve,  he  shall  be  bounden  to  serve  him  which 
so  shall  him  require." 

A  distinguished  writer  on  the  criminal  law  of  Eng- 
land, concerning  these  statutes,  said: 

"  The  main  object  of  these  statutes  was  to  cheek  the 
rise  in  wages  consequent  upon  the  great  pestilence  called 
the  black  death."  ^4 

33  23  Edw.  III. 

3*  Stephen's  History  of  the  Criminal  Lww  of  England,  Vol. 
Ill,  p.  204. 


WHY  THE  PEOPLE  DISTRUST       131 

By  many  subsequent  statutes,  these  provisions  were 
recnacted  and  others  passed,  even  more  stringent, 
and  by  which  the  hours  of  labor  were  fixed,  in  some 
instances  from  five  a.  m.  to  eight  p.  m.  By  these 
early  statutes,  laborers  who  left  their  work  and  went 
into  another  county  were  liable  to  be  arrested  by  the 
Sheriff  and  brought  back,  and  all  alliances  and  unions 
between  laborers  were  prohibited.^^ 

In  1548  a  more  general  statute  was  passed  which 
forbade  .laborers  to  conspire 

"  not  to  make  or  do  their  work,  but  at  a  certain  price 
or  rate  " 

under  penalty  of  loss  of  an  ear  and  of  being  declared 
infamous.^^  In  1720  an  act  was  passed  declaring 
all  agreements  of  various  laborers 

"  for  advancing  their  wages  or  for  lessening  their  usual 
hours  of  work" 

to  be  null  and  void,  and  imposing  the  penalty  of  im- 
prisonment for  entering  into  such  agreements.^^  As 
late  as  the  year  1800  a  statute  was  passed  ^^  which 
provided  imprisonment  with  hard  labor  for  the  work- 
man who 

"enters  into  any  combination  to  obtain  an  advance  of 
wages  or  lessen  or  alter  the  hours  of  work,     ...     or 

35  See  statutes  of  1360,  1368,  1388. 

36  2  and  3  Edw.  VI,  c.  15. 

37  7  Geo.  I,  1,  c.  13. 

38  40  Geo.  Ill,  c.  60. 


132         OUR  JUDICIAL  OLIGAECHY 

who  hinders  any  employer  from  employing  any  person 
as  he  thinks  proper  or  who,  being  hired,  refuses  without 
any  just  or  reasonable  cause,  to  work  with  any  other 
journeyman  or  workmen  employed  or  hired  to  work." 

Severe  penalties  were  also  inflicted  iipon  persons 
who  attended  meetings  held  for  the  purpose  of  col- 
lecting money  to  advance  the  above  purposes,  and  it 
was  also  made  an  offense  to  assist  any  man  or  men 
engaged  in  a  strike.  The  courts  w^ere  never  back- 
ward in  enforcing  these  statutes,  but  gradually,  as 
the  suffrage  was  extended,  and  the  laboring  classes 
came  to  have  a  voice  and  vote  in  matters  of  govern- 
ment, the  old  statutes  were  repealed  and  replaced  by 
others  less  favorable  to  the  employer. 

The  courts,  however,  both  in  England,  and  in  this 
country,  being  far  removed  from  popular  control, 
have  stubbornly  contested  every  foot  of  the  advance 
made  by  the  working  classes  toward  equality  under 
the  law.  The  history  of  this  process  through  the 
centuries,  interesting  as  it  might  be,  is  not  involved  in 
our  present  discussion,  which  is  necessarily  confined 
to  those  recent  decisions,  which  go  to  make  up  or 
directly  influence  the  existing  body  of  the  law  on 
this  subject.  It  is  important  to  note,  however,  that 
in  monarchial  England,  where  the  hard  statutes 
against  labor  had  their  origin,  and  where  the  deci- 
sions of  the  courts  necessarily  reflected  the  harshness 
of  the  statutory  law,  all  has  been  changed  by  recent 
legislation.     While  in  this  country,  having  borrowed 


WHY  THE  PEOPLE  DISTRUST      133 

from  England  the  uncivilized  and  harsli  principles 
of  her  early  law,  our  courts  have  thus  far  been  able 
to  prevent  anything  like  the  sweeping  changes  in  the 
law  affecting  laborers  which  has  taken  place  in  Eng- 
land. A  familiar  example  of  the  progress  of  the 
English  law  relating  to  workmen  is  found  in  the  cele- 
brated Taff  Vale  case.^^  In  that  case  a  strike  having 
arisen  in  August,  1900,  among  the  employes  of  the 
Taff  Vale  Railway  who  were  organized  into  a  society, 
but  not  a  corporation,  it  was  decided  by  the  House 
of  Lords  that  an  injunction  would  issue  against  the 
society  and  all  its  members,  also  that  the  society 
could  be  sued  and  the  money  in  its  treasury,  collected 
to  pay  benefits  to  widows  and  orphans,  could  be 
used  to  pay  any  judgment  for  damages  which  the 
Railroad  Company  might  recover  as  a  result  of  the 
acts  of  the  strikers.  In  the  argument  of  this  case, 
Haldane,  K.  C,  pointed  out  for  the  Society,  the 
danger  of  the  rule  which  the  Court  in  fact  adopted. 
He  said: 4'* 

"  A  trade  union  then  is  not  a  corporation  nor  an  in- 
dividual, nor  a  partnership.  It  is  like  a  club,  not  a 
legal  entity:  and  there  are  good  reasons  for  this  view. 
If  the  society  can  be  sued  as  such,  the  funds  intended 
for  the  benefit  of  widows  and  orphans  can  be  reached 
and  perhaps  exhausted  in  consequence  of  improper  and 

39  TaflF  Vale  Ry.  Co.  v.  Amalgamated  Society  of  Railway 
Servants,  L.  R.  App.  Cases,  1901,  p.  426. 

40  Id.,  p.  435. 


134        OUR  JUDICIAL  OLIGARCHY 

illegal  acts  of  the  society's  officers.  That  would  be  a 
great  calamity  and  was  surely  not  intended  by  the 
Legislature/^ 

The  Court,  however,  decided  in  all  respects  in 
favor  of  the  contentions  of  the  Railway  Company  and 
issued  an  injunction  against  the  society  and  its  mem- 
bers forbidding  picketing  and  interference  with  the 
railway  company  and  its  strike  breakers,  which  reads 
very  much  like  many  of  our  own  Federal  Court  in- 
junctions issued  in  similar  cases.  Note  now  the  dif- 
ference between  the  action  of  the  law-making  branch 
of  the  English  Government  and  our  own  in  the  same 
situation.  The  most  we  could  hope  to  do  with  a  de- 
cision like  the  Taff  Vale  case,  and  there  are  many  of 
them  in  this  country,  would  be  slightly  to  lessen  its 
hardship  by  statutes  so  harmless  that  the  courts 
would  permit  them  to  stand.  While  in  England,  on 
the  other  hand,  the  Legislature  being  free  to  act  for 
the  best  interests  of  the  people,  according  to  its  own 
judgment,  promptly  passed  a  statute  which  cut  up 
the  Taff  Vale  decision  by  the  roots  and  entirely  revo- 
lutionized the  law  of  England  upon  the  subject.^ ^ 

Section  5,  Subdivision  3  of  the  Act  provides: 

"An  act  done  by  a  person  in  contemplation  or  fur- 
therance of  a  trade  dispute  shall  not  be  actionable  on 
the  ground  only  that  it  induces  some  other  person  to 
break  a  contract  of  employment,  or  that  it  is  an  inter- 

41  Trade  Disputes  Act,  1906,  Sees.  1-5. 


WHY  THE  PEOPLE  DISTKUST      135 

ference  with  the  trade,  business  or  employment  of  some 
other  person,  or  with  the  right  of  some  other  person,  to 
dispose  of  his  capital  or  his  labor  as  he  wills." 

Section  5,  Sub-Division  3  of  the  Act  Provides : 

"The  expression  *  trade  dispute'  means  any  dispute 
between  employers  and  workmen  or  between  workmen 
and  workmen  which  is  connected  with  the  employment 
or  non-employment  or  the  terms  of  emplo^Tnent,  or  with 
the  conditions  of  labor  of  any  person,  and  the  expression 
'  workmen '  means  all  persons  employed  in  trade  or  in- 
dustry, whether  or  not  in  the  employment  of  the  em- 
ployer with  whom  a  trade  dispute  arises." 

Speaking  of  the  effect  of  this  statute  in  a  subse- 
quent case  *^  it  is  said : 

"  This  appeal  raises  questions  of  difficulty  and  of 
general  importance  as  to  the  meaning  and  effect  of  the 
Trade  Disputes  Act  of  1906,  and  particularly  of  Sec.  3 
of  that  act.  It  is  plain  that  the  main  object  of  the 
act  was  to  put  trade  unions  in  a  peculiar  and  prefer- 
ential position,  and  to  treat  trade  disputes  differently 
from  all  other  disputes.  Thus  Sec.  1  alters  the  law 
of  conspiracy  —  or  rather,  I  should  say,  repeals  the  law 
of'  conspiracy  —  where  there  is  a  trade  dispute,  but 
leaves  it  intact  in  every  other  case.  Sec.  2  sanctions 
peaceful  picketing  where  there  is  trade  dispute.  Sec. 
3  was  probably  intended  as  a  rider  to  Sec.  1.     It  al- 

42  Conway  v.  Wade,  L.  R.  Kings  Bench  Division,  1908,  Vol. 
II,  p.  844. 


136         OUR  JUDICIAL  OLIGAECHY 

ters  the  established  common  law  liability  of  an  individ- 
ual apart  from  conspiracy,  not  generally,  but  only  where 
there  is  a  trade  dispute,  either  in  contemplation  or  in 
existence." 

That  this  statute  is  not  popular  with  the  English 
courts  clearly  appears  from  the  case  last  cited,'* ^  and 
others.**  But  as  the  cases  mentioned  show,  the 
courts  feel  bound  to  enforce  it  and  give  effect  to  its 
meaning,  however  shocking  it  seems  to  them.  Now 
contrast  this  with  the  action  of  our  own  courts,  in 
holding  a  statute  unconstitutional  and  void  because 
it  forbade  a  Railway  Company  to  discharge  employes 
merely  because  they  belonged  to  a  labor  union ;  *^ 
and  in  holding  the  Employers  Liability  Act  void, 
providing  that  contributory  negligence  of  the  injured 
should  not  be  a  defense  when  it  was  slight  and  that 
of  the  employer  was  gross.*® 

While  the  decision  last  mentioned  proceeds  upon 
the  ground  that  the  act  was  not  confined  to  subjects 
of  interstate  commerce  and  hence  was  not  within  the 
domain  of  congressional  regulation,  the  State  courts 
unhesitatingly  destroy  kindred  legislation  on  the 
broad  ground  that  it  deprives  the  employer  of  his 

43  Reversed  78  L.  J.  K.  B.  1025. 

44  Amalgamated  Society  of  Railway  Servants  v.  Osborne,  L. 
R.  App.  Cases,  1910,  p.  87;  Markt  v.  Knight  (1910),  2  K.  B. 
1021,  79  L.  J.  K.  B.  939. 

45  Adair  v.  U.  S.,  208  U.  S.  161. 

46  Employers'  Liability  cases,  207  U.  S.  463. 


WHY  THE  PEOPLE  DISTEUST       137 

property,  without  "  due  process  of  law  "  and  is  con- 
sequently void  under  the  Fourteenth  amendment  to 
the  Eederal  Constitution,  as  well  as  under  most  of 
the  State  Constitutions.^^ 

These  decisions  and  others  like  them  bring  into 
sharp  relief  the  difficulty  in  this  country  of  changing 
the  old  law  affecting  laborers  and  labor  unions,  so  as 
to  make  it  conform  to  public  sentiment  and  to  the 
intention  of  the  law-making  branch  of  the  govern- 
ment. Precisely  what  part  the  decisions  of  our 
courts  have  thus  far  played  in  this  movement  re- 
mains to  be  considered. 

One  of  the  early  Christian  Kings  of  England,^* 
introduced  his  criminal  statutes  with  the  following 
general,  but  very  commendable  language : 

"  Though  any  one  sin  or  deeply  foredo  himself,  let  the 
corrections  be  regulated  so  that  it  be  becoming  to  God 
and  tolerable  before  the  world.  And  let  him  who  has 
power  of  judgment  very  earnestly  bear  in  mind  what 
he  himself  desires  when  he  says:  'forgive  us  our  tres- 
passes as  we  forgive  those  who  trespass  against  us '  and 
we  command  that  Christian  men  on  no  account,  for 
altogether  too  little,  condemn  to  death;  but  rather  let 
gentle  punishment  be  decreed  for  the  benefit  of  the 
people,  and  let  not  be  destroyed  for  little,  God's  handi- 
work and  his  own  purchase  which  he  dearly  bought." 

47  Ives  V.  South  BuflFalo  Ry.  Co.,  201  N.  Y.  271;  Durkin  v. 
Kingston  Coal  Co.,  171  Pa.  St.  193. 

48  Canute,  1017-35. 


138         OTJE  JUDICIAL  OLIGARCHY 

When  the  good  king  had  finished  his  preamble  and 
got  down  to  the  business  at  hand,  he  fixed  the  punish- 
ment of  those  who  violated  his  statue,  by  providing, 
concerning  the  offender: 

"  That  his  hands  be  cut  off,  or  his  feet,  or  both,  ac- 
cording as  the  deed  may  be.  And  if  he  have  wrought 
yet  greater  wrong,  then  let  his  eyes  be  put  out,  and  his 
nose  and  his  ears  and  his  upper  lip  cut  off  and  let  him 
be  scalped ;  whichever  of  these  those  shall  counsel  whose 
duty  it  is  to  counsel  thereupon,  so  that  punishment  be 
inflicted  and  also  the  soul  be  preserved."  ^® 

I  am  always  reminded  of  old  King  Canute  and  his 
criminal  statutes,  when  I  read  the  decisions  of  our 
courts  relating  to  labor  disputes.  The  decisions  al- 
ways abound  with  satisfying  phrases  about  the 
"  Dignity  of  Labor,"  "  Sacredness  of  Contract," 
"  The  Right  to  Work  "  and  the  like,  but  when  the 
decision  gets  down  to  the  question  presented  in  the 
particular  case,  and  has  finished  with  the  Labor  Or- 
ganization before  it,  that  unfortunate  party  is  apt 
to  bear  a  strong  resemblance  to  one  of  King  Canute's 
subjects  after  a  collision  with  that  Monarch's  criminal 
law. 

As  we  have  previously  seen,  the  year  1800  was 
ushered  in,  in  England,  by  the  passage  of  the 
statute  ^^  Avhich  practically  forbade  any  combination 

49  Stephen's  History  of  the  Criminal  Law,  Vol.  I,  pp.  58,  59. 

50  40  Geo.  Ill,  c.  60. 


lWHY  the  people  DISTKUST       139 

among  laborers  to  obtain  an  advance  of  wages  or  to 
lessen  the  hours  of  work,  and  which  also  prohibited 
strikes  and  the  giving  of  aid  to  strikers.  This  statute 
was  continued  in  effect  until  1824  when  it  was  re- 
pealed and  two  other  statutes  were  passed,  one  in 
1824  and  one  in  1825,  much  less  hostile  to  labor.^^ 
The  act  of  1825,  contained  no  provisions  which  made 
men  liable  to  summary  punishment  for  promoting 
strikes.  It  is  at  this  point  that  the  courts  take  up 
the  fight  and  by  a  series  of  decisions  based  upon  what 
they  are  pleased  to  term  the  common  law,  practically 
maintain  much  of  the  hardship  and  injustice  of  the 
old  statute  which  had  been  repealed.^-  The  state  of 
the  law  under  these  decisions  is  thus  described  by  Sir 
James  Fitzjames  Stephen,  a  Justice  of  the  Queen's 
Bench :  ^^ 

"  A  bare  agreement,  not  to  work  except  upon  certain 
specified  terms,  was,  so  long  as  this  view  of  the  law 
prevailed,  all  that  the  law  permitted  to  workmen.  If 
a  single  step  was  taken  to  dissuade  systematically  other 
persons  from  working,  those  who  took  it  incurred  the 
risk  of  being  held  to  conspire  to  injure  the  employer, 
or  to  conspire  to  obstruct  him  in  the  conduct  of  his 
business.  It  is  difficult  to  see  how,  in  the  case  of  a 
conflict  of  interests,  it  is  possible  to  separate  the  two 

Bi  6  Geo.  IV,  c.  129. 

52  These  decisions  are  compiled  in  Stephen's  History  of  the 
Criminal  Laio  of  England,  Vol.  Ill,  p.  217. 

53  Stephen,  Vol.  Ill,  p.  218. 


140         OUE  JUDICIAL  OLIGAECHY 

objects  of  benefiting  yourself  and  injuring  your  antag- 
onist. Every  strike  is  in  the  nature  of  an  act  of  war. 
Gain  on  one  side  implies  loss  on  the  other;  and  to  say 
that  it  is  lawful  to  combine  to  protect  your  own  inter- 
ests, but  unlawful  to  combine  to  injure  your  antagonist, 
is  taking  away  with  one  hand  a  right  given  with  the 
other." 

These  decisions  reached  their  culmination  when  it 
was  held  in  substance  that  the  objects  of  a  trade  union 
were  so  far  illegal  that  the  embezzlement  of  its  funds 
was  not  an  offense  against  the  statute.^^  From  this 
point  on,  statute  after  statute  was  passed  in  England 
to  correct  the  injustice  of  the  Court  decisions  until, 
at  the  present  time,  as  we  have  seen,  there  is  little  of 
the  old  law  relating  to  labor  organizations  left  in  that 
country.  The  "  common  law  "  applied  by  the  courts 
after  the  remedial  statute  of  1825  had  been  passed, 
seems  to  have  been  invented  by  the  Judiciary  in  order 
to  keep  laborers  and  labor  unions  in  subjection. 
This  must  be  so,  because  the  whole  subject  had  been 
minutely  regulated  by  statute  and  with  the  repeal  of 
the  statutes,  the  decisions  of  the  courts  based  thereon 
must  also  have  fallen.^' 

I  have  hastily  sketched  the  development  of  the 

54  Hornby  v.  Close,  L.  R.  2  Q.  B.  153;  Farrer  v.  Close,  L. 
R.  4  Q.  B.  602. 

55  This  whole  subject  is  discussed  in  Stephen's  History  of  the 
Criminal  Law  of  England,  by  an  authority  who  certainly  was 
not  friendly  to  trade  unions,  nor  over  critical  of  the  courts. 
See  Vol.  Ill,  pp.  203-27. 


WHY  THE  PEOPLE  DISTRUST       141 

law  of  England  on  the  subject  under  consideration, 
in  part  at  least,  because  it  is  easier  to  see  what  the 
courts  have  done  in  another  country,  than  it  is  to  see 
what  they  are  doing  in  our  own.  Every  student  of 
the  subject  must  admit  the  hostility  manifested  by 
the  English  courts  to  laborers  and  labor  unions,  and 
their  repeated  attempts  to  maintain  the  principles  of 
the  old  law,  even  though  this  involved  disregarding 
the  remedial  statutes  which  were,  from  time  to  time 
passed.  It  is  not  always  so  easy  for  us,  however,  to 
admit  the  equally  obvious  truth  that  our  own  courts 
are  engaged  in  doing  identically  the  same  thing. 

Our  courts  early  showed  an  inclination  to  apply 
the  rules  of  the  earliest  English  Law  on  the  subject 
by  forbidding  laborers  to  continue  their  organiza- 
tion,^^ and  by  practically  prohibiting  strikes.^'' 
These  decisions,  have,  of  course,  been  modified  in  the 
particulars  mentioned,^^  but  the  rules  now  existing 
are  hardly  less  shocking  in  their  injustice  than  those 
announced  by  the  English  courts  early  in  the  last 
century. 

Compare  the  rules  which  the  courts  have  devised 
for  the  government  of  the  employer  and  employes  in 
the    contests    constantly    waged    between    organized 
labor  and  capital.     The  right  of  an  employer  to  dis- 
ss 37  Am.  Law  Review,  431. 

57  Farmers'  Loan  &  Trust  Co.  v.  Northern  Pac.  R.  R.  Co., 
60  Fed.  803,  opinion  by  Jenkins,  circuit  judge. 

58  Arthur  v.  Oakes,  63  Fed.  310. 


142         OUR  JUDICIAL  OLIGARCHY 

charge  an  employe  at  any  time  for  any  reason  or  for 
no  reason  and  to  give  notice  to  other  employers  of 
such  discharge  and  the  reasons  for  it  is  well 
settled.^'' 

Some  years  ago  the  Western  Union  Telegraph 
Company,  having  become  aware  that  certain  of  its 
employes  had  joined  a  labor  union,  immediately  dis- 
cliarged  them  without  notice  and  without  other  cause 
and  also  notified  other  employers  of  such  discharge 
and  the  reasons  for  it.  In  other  words,  the  dis- 
charged men  were  "  Blacklisted."  The  employes, 
having  witnessed  many  successful  applications  to  the 
courts  by  employers  under  similar  circumstances  ap- 
plied to  the  Court  themselves,  setting  up  that  the  de- 
fendant company  had  unlawfully  conspired  with 
other  parties  mentioned  to  destroy  the  labor  union 
and  to  work  irreparable  injury  to  the  men,  not  only 
by  discharging  them,  but  by  preventing  their  em- 
ployment elsewhere.  The  Federal  Court,  however, 
in  which  the  action  was  brought,  turned  a  deaf  ear  to 
the  complaint  of  the  employes  and  laid  down  the 
rights  of  the  employers  in  the  following  terms :  ^^ 

"  As  in  the  absence  of  contract  for  employment  for  a 
definite  period,  the  employer  may  discharge  his  em- 
ployes at  any  time  for  any  reason,  or  for  no  reason, 

59  Boyer  v.  Western  Union  Telegraph  Co.,  124  Fed.  246 ; 
The  Modern  Law  of  Labor  Unions,  by  Martm,  Sec.  275  and 
cases  cited. 

60  124  Fed.  246. 


WHY  THE  PEOPLE  DISTRUST      143 

there  can  be  no  such  thing  as  an  unlawful  conspiracy 
to  destroy  a  labor  union  by  discharging  its  members  or 
refusing  to  employ  them.  An  employer,  having  dis- 
charged employes  for  belonging  to  a  labor  union,  has 
the  right  to  keep  a  book  containing  their  names,  and 
showing  the  reason  of  their  discharge  and  to  invite 
inspection  thereof  by  other  employers,  even  though  the 
latter  therefor  refuse  to  hire  the  discharged  employes." 

and  again : 

"  An  allegation  in  a  bill  by  members  of  a  labor  union 
for  an  injunction,  that  defendant,  its  officers  and  agents 
have  unlawfully  combined  and  confederated  to  destroy 
the  union  and  by  threats,  intimidation  and  coercion, 
and  otherwise,  are  interfering  with  plaintiffs  and  with 
others  of  their  employes  for  uniting  with  the  union, 
and  are  seeking  to  prevent  those  discharged  from  ob- 
taining employment"  states  no  cause  of  action. 

^ow  the  correlative  rights  which  the  employes 
should  possess  in  order  to  be  on  even  a  substantial 
equality  with  the  employers  is  to  quit  work  at  any 
time,  for  any  cause,  or  for  no  cause,  and  in  any 
number,  and  to  publish  to  all  other  employes  the  rea- 
son for  such  action.  That  employes  do  not  possess 
these  rights  and  that  they  are  constantly  being 
severely  punished  and  even  imprisoned  for  attempt- 
ing to  perform  such  acts  is  well  known.  The  courts 
divide  strikes  into  two  classes, —  lawful  and  unlaw- 
ful. Strikes  are  declared  unlawful  sometimes  be- 
cause of  their  object,  and  sometimes  because  of  the 


144         OUR  JUDICIAL  OLIGAECHY 

means  employed.  'No  one  can  tell  in  advance  what 
a  court  will  hold,  for  there  is  no  uniformity  in  the 
rulings.  The  view-point,  whim,  or  caprice  of  a  judge 
determines,  in  the  majority  of  cases,  whether  a  strike, 
which  means  almost  life  or  death  to  thousands  of 
employes,  will  be  permitted  as  lawful,  or  enjoined 
and  broken  up  by  the  courts  as  unlawful.  For  ex- 
ample,—  a  sympathetic  strike  on  the  part  of  railroad 
employes  in  order  to  aid  the  striking  employes  of  the 
Pullman  Palace  Car  Company  was  held  to  be  unlaw- 
ful®^ and  the  organization  of  the  railway  employes 
for  such  purpose  a  conspiracy  for  which  various  of 
them  served  long  terms  in  prison.  In  the  Thomas 
case  just  cited,  Mr.  Justice  Taft  said : 

"All  the  employes  had  the  right  to  quit  their  em- 
ployment." 

Having,  like  King  Canute  conceded  that  much  for 
Christian  charity,  the  learned  Justice  proceeds: 

"  But  they  had  no  right  to  combine  to  quit,  in  order 
thereby  to  compel  their  employer  to  withdraw  from  a 
mutually  profitable  relation  with  a  third  person  for 
the  purpose  of  injuring  that  third  person,  when  the 
relation  thus  sought  to  be  broken  had  no  effect  what- 
ever on  the  character  or  reward  of  their  services.  It  is 
the  motive  for  quitting  and  the  end  sought  thereby  that 
make  the  injury  inflicted  unlawful  and  the  combination 
by  which  it  is  effected  unlawful  conspiracy." 

61  Thomas  v.  Cincinnati,  etc.,  Ry.  Co.,  62  Fed.  803,  opinion 
by  Taft,  J.  in  re  Debs,  158  U.  S.  564. 


WHY  THE  PEOPLE  DISTEUST       145 

So  also  it  is  an  "  indictable  conspiracy  "  for  em- 
ployes to  combine  and  notify  their  employer  tbat  un- 
less he  discharges  certain  named  persons,  they  will 
strike.^^  In  the  case  last  mentioned,  nothing  more 
was  shown  than  that  the  employes  notified  the  em- 
ployer that  unless  certain  men  were  discharged  they 
would  quit.     Of  this  act,  the  Court  said: 

"  This  was  an  unwarrantable  interference  with  the 
conduct  of  his  (the  employer's)  business,  and  it  seems 
impossible  that  such  acts  should  not  be  in  their  usual 
effects  highly  injurious.  ...  I  cannot  regard  such 
a  course  of  conduct  as  lawful.  It  is  no  answer  to  the 
above  considerations  to  say  that  the  employer  is  not 
compelled  to  submit  to  the  demand  of  his  employes; 
that  the  penalty  of  refusal  is  simply  that  they  will  leave 
his  service.  There  is  this  coercion :  —  The  men  agree 
to  leave  simultaneously  in  large  numbers  and  by  precon- 
certed action.  We  cannot  close  our  eyes  to  the  fact, 
that  the  threat  of  the  workman  to  quit  the  employer, 
under  these  circumstances,  is  equivalent  to  a  threat  that 
unless  he  yield  to  their  unjustifiable  demand,  they  will 
derange  his  business  and  thus  cast  a  heavy  loss  upon 
him.  ...  In  such  a  condition  of  afi'airs  it  is  idle 
to  suggest  that  the  manufacturer  is  free  to  reject  the 
terms  which  the  confederates  offer." 

Contrast  this  rule  with  the  employer's  right  to  dis- 
charge an  employe  for  any  reason,  or  for  no  reason. 
So  also  it  is  held  that  a  strike  by  the  members 

62  state  v.  Donaldson,  32  N.  J.  Law.  151. 


146         OUE  JUDICIAL  OLIGARCHY 

of  a  labor  union  because  an  employer  has,  as  the 
union  finds,  unjustly  discharged  an  employe,  and 
refuses  to  take  him  back,  is  unlawful,  and  will  be 
enjoined.^  ^ 

Aside  from  holding  strikes  unlawful,  because  of 
their  object,  a  favorite  practice  of  the  courts  is  to 
declare  them  unlawful  because  of  the  means  em- 
ployed. Since,  no  possible  good  can  come  to  strikers 
if  their  places  can  be  immediately  filled  by  other 
employes,  it  becomes  necessary  for  them  to  inform 
those  about  to  take  their  places,  of  the  existence  of 
the  strike  and  the  reason  for  it.  This  object  is  best 
accomplished  by  the  strikers  or  their  friends  remain- 
ing in  the  vicinity  of  the  work,  and  meeting  the  new 
men  as  they  arrive  and  persuading  them  not  to  ac- 
cept employment.  This  is  called  "  picketing."  A 
recent  decision  of  the  Illinois  Supreme  Court  is  to 
the  effect  that  picketing  for  the  purpose  merely  of 
peaceably  dissuading  from  going  to  work,  the  men 
who  were  brought  in  by  the  company  to  take  the 
strikers'  places,  was  unlawful  and  would  be  en- 
joined.^^  While  some  courts  say  that  picketing  with- 
out violence  is  pennissible,  yet  as  it  is  always  possible 
for  the  employer  to  incite  some  one  to  violence,  and 
in  many  cases  individual  employes  will  resort  to 
violence,  it  easily  happens  that  some  disorder  attends 

63  Reynolds  v.  Davis,  198  Mass.  294. 

«4  Barnes  v.  Typographical  Union,  232  111.  424. 


WHY  THE  PEOPLE  DISTRUST       147 

upon  picketing,  and  since  the  courts  uniforaily  hold 
this  a  sufficient  reason  for  granting  an  injunction,  it 
has  come  about  that  striking  employes  have  practi- 
cally been  deprived  by  the  decisions  of  the  courts 
of  the  right  to  peaceably  dissuade  others  from  taking 
their  places.^^  A  pertinent  inquiry  of  the  labor 
organizations  at  this  point  is,  why  not  depend  upon 
the  criminal  law  in  the  case  of  a  strike  as  in  all  other 
cases,  to  punish  any  breach  of  the  peace  or  other 
violence  ?  Proceeding  under  the  form  of  the  crimi- 
nal law  insures  a  jury  trial,  and  proof  of  guilt 
beyond  a  reasonable  doubt,  before  one  charged  with 
an  offense  can  be  punished.  Why  should  a  court  of 
equity  dispense  with  all  these  safeguards  and  proceed 
summarily  to  imprison  men  without  a  jury  trial,  and 
upon  evidence  which  would  never  sustain  a  conviction 
in  a  criminal  action  ? 

The  use  of  the  injunctive  process  by  the  courts 
in  this  class  of  cases  has  become  so  common  in  recent 
years  that  we  have  coined,  to  describe  it,  the  ex- 
pression "  government  by  injunction."  The  exercise 
of  this  power  by  the  courts  has  been  of  such  a  char- 
es state  V.  Stockford,  77  Conn.  227;  N.  Y.  Central  Iron 
Works  V.  Brennan,  105  Supp.  (N.  Y.),  865;  Schwarcz  v.  In- 
ternational L.  G.  W.  Union,  68  Misc.  (N.  Y.),  529;  Curran 
V.  Galen,  152  N.  Y.  33;  U.  S.  v.  Kane,  23  Fed.  748;  Frank 
V.  Denver,  etc.,  Ry.,  23  Fed.  757;  Casey  v.  Typographical 
Union,  45  Fed.  135;  Martin  on  the  Law  of  Labor  Unions 
(1910),  Sees.  168-9. 


148         OUR  JUDICIAL  OLIGAECnY 

acter  as  to  alarm  even  the  most  conservative  mem- 
bers of  the  legal  profession."^ 

Another  method  resorted  to  by  labor  to  enforce  its 
demands  against  employers  is  the  "  boycott."  This 
term  has  been  variously  defined,  but  in  a  general  sense 
it  means  the  refusal  of  the  employes  engaged  in  a 
trade  dispute  to  patronize  the  employer  with  whom 
such  dispute  exists  and  also  to  procure  as  many 
sympathizers  and  as  large  a  portion  of  the  public  as 
possible,  also  to  withhold  patronage  from  the  objec- 
tionable employer.  This  latter  action  is  usually 
referred  to  as  a  "  Secondary  Boycott."  It  is  to  the 
members  of  the  labor  organization  what  the  "  Black- 
list "  is  to  the  employer.  By  the  "  Blacklist,"  the 
employer  gives  out  information  in  order  to  prevent 
the  employment  of  certain  laborers.  The  laborers, 
when  they  publish  an  employer  as  "  unfair,"  give  out 
information  intended  to  prevent  various  persons  from 
patronizing  such  employer.  ]^ote,  however,  that 
while  the  "  Blacklist "  is  uniformly  upheld  by  the 
courts,  except  as  it  has  been  prohibited  by  Legisla- 
tive action,  the  "  Secondary  Boycott,"  so-called,  is  as 
uniformly  condemned  and  prohibited."'^  These  de- 
es n  Harvard  Law  Review,  p.  487,  article  by  Charles  Noble 
Gregory,  Dean  of  the  Law  School  of  Iowa  University.  Also, 
42  American  Law  Revieio,  p.  161  and  p.  200. 

67  Thomas  v.  Cincinnati,  etc.,  Ry.,  62  Fed.,  p.  803  and  cases 
there  cited  by  Mr.  Justice  Taft;  Hopkins  v.  Oxley  Stave  Co., 
83  Fed.  912;  Gompers,  Mitchell  and  Morrison,  petitioners,  v. 
Bucks  Stove  &  Range  Co.,  decided  by  the  Supreme  Court  of 


WHY  THE  PEOPLE  DISTEUST       149 

clsions  show  that  when,  by  the  "  Blacklist,"  an  em- 
ployer is  able  to  break  up  a  labor  union  and  starve 
the  employes  and  their  families  into  submission,  no 
cause  of  action  arises,  and  the  laborer  is  without 
remedy.  But,  when  by  publishing  an  employer  as 
"  unfair  "  a  loss  of  business  is  caused,  such  act  is 
said  to  work  "  irreparable  damage  "  to  the  employer 
and  all  the  machinery  of  the  courts  is  set  in  motion 
to  prevent  it.  In  the  Gompers  case  just  referred  to, 
which  is  the  latest  utterance  of  our  highest  Court,  on 
this  subject,  it  is  said: 

"  The  Court's  protective  and  restraining  powers  ex- 
tend to  every  device  whereby  property  is  irreparably 
damaged  or  commerce  is  illegally  restrained.  .  .  . 
In  case  of  an  unlawful  conspiracy  (agreeing  to  publish 
certain  employers  as  unfair)  the  agreement  to  act  in 
concert  when  the  signal  is  published,  gives  the  words 
Unfair,  We  don't  patronize,  or  similar  expressions,  a 
force  not  inhering  in  the  words  themselves,  and  there- 
fore exceeding  any  possible  right  of  speech  which  a 
single  individual  might  have.  Under  such  circumstances 
they  have  become  what  have  been  called  "verbal  acts," 
and  as  much  subject  to  injunction  as  the  use  of  any 
other  force  whereby  property  is  unlawfully  damaged."  ®^ 

the  United  States  May  15,  1911,  221  U.  S.  418,  and  cases  there 
cited. 

68  While  the  Supreme  Court,  by  disposing  of  the  ease  on  a 
question  of  procedure,  avoided  the  necessity  of  confirming  the 
sentences  of  imprisonment  which  had  been  imposed  on  the 
labor  leaders,  Gompers,  Mitchell,  and  Morrison,  the  language 


150         OUR  JUDICIAL  OLIGARCHY 

When  a  court  is  at  liberty,  as  this  decision  plainly 
shows  all  courts  are  in  cases  of  trade  disputes,  to 
treat  words  as  acts,  it  is  only  a  step  to  treat  acts  as 
•words,  and  all  princij^les  of  law  by  which  men's 
conduct  has  heretofore  been  judged  will  vanish,  and 
in  its  place  we  will  have  simply  the  uncontrollable 
discretion  of  a  judge. 

The  United  States  Circuit  Court  of  Appeals,  for 
the  Southern  District  of  New  York,  in  Paine  Lumber 
Company  et  al.  v.  J^eal  et  al.,  decided  November 
29th,  1911,  on  appeal  from  an  order  granting  a  pre- 
liminary injunction,  has  carried  the  doctrine  of  en- 
joining strikes  to  its  logical  conclusion.  In  that  case 
it  appears  that  the  complainants  were  manufacturers 
of  doors,  frames,  and  other  varieties  of  wood-work. 
The  defendants  included  officers  and  members  of  the 
United  Brotherhood  of  Carpenters  and  Joiners  of 
America.  A  dispute  having  arisen,  the  complain- 
ants, who  conducted  an  "  open  shop,"  sought  an  in- 
junction, restraining  the  defendants  from  agreeing 
to  refuse  to  handle  materials  produced  by  complain- 
ants and  from  publishing  the  complainants'  products 
as  "  unfair,"  and  from  attempting  to  induce  any  per- 
son, to  either  decline  employment  with  complainants 
or  to  quit  their  employ,  and  also  for  various  other 
purposes.  An  injunction  was  granted  which  en- 
joined the  defendants,  among  other  things, 

quoted  makes  it  plain  that  the  court  is  tenaciously  holding 
on  to  all  the  power  heretofore  asserted  in  this  class  of  cases. 


WHY  THE  PEOPLE  DISTEUST       151 

"  from  interfering  in  any  manner,  with  .  .  .  the 
installation  or  setting  up  of  any  of  the  products  of 
the  complainants  and  from  .  .  .  communicating 
.  .  .  to  any  other  person,  firm,  or  corporation,  any 
statement  or  notice  of  any  kind,  or  character,  whatso- 
ever, calling  attention  to  the  fact  that  your  complain- 
ants, or  their  business  or  their  products  are  or  were  or 
have  been  declared  unfair,  or  on  any  unfair  list,  or  that 
your  complainants  should  not  be  patronized  with  or 
dealt  with  or  their  products  purchased,  used,  handled, 
worked  upon,  or  dealt  in,  because  made  in  an  open  or 
non-union  shop,  and  from  .  .  .  attempting  to  in- 
duce any  person  or  persons  whomsoever,  to  decline  em- 
ployment or  cease  employment,  or  not  to  seek  employ- 
ment with  any  person,  firm  or  corporation  because  such 
person,  firm  or  corporation  may  have  made  contracts  or 
proposed  to  make  contracts,  with  complainants  .  .  . 
and  from  requesting  customers  or  those  who  might  be- 
come customers  of  the  complainants,  to  purchase  their 
wood  materials  from,  or  have  their  wood-work  done  by 
persons  or  corporations  who  use  the  union  label  of  the 
United  Brotherhood  of  Carpenters  and  Joiners  of  Amer- 
ica,    ...     so  that  they  may  avoid  labor  troubles." 

The  opinion  in  this  case  by  Mr.  Justice  Coxe  was 
filed  May  22nd,  1911,  and  the  injunctional  order 
from  which  the  above  quotations  are  made  was  filed 
May  9th,  1911.  l^either  the  opinion  nor  the  injunc- 
tional order  appears  in  the  Federal  Reporter  covering 
the  time  of  the  decision.  The  Circuit  Court  of  Ap- 
peals afiirmed  the  order  on  iNoveniber  20th,  1911,  in 


152         OUE  JUDICIAL  OLIGARCHY 

an  opinion  which  gives  no  idea  of  the  sweeping  na- 
ture of  the  injunction  granted. 

To  the  credit  of  the  Judiciary,  it  is  to  be  said  that 
the  present  monstrously  unjust  state  of  the  law  on 
this  subject  was  not  built  uj),  without  powerful  pro- 
tests from  some  of  the  Judges.  Lack  of  space  will 
permit  me  to  refer  to  only  one  of  these, —  that  of 
Judge  Caldwell,  in  his  dissenting  opinion  in  the  Ox- 
ley  Stave  Co.  case  above  noticed,  where  he  vigorously 
protested  against  the  injunction  issued  by  the  Court 
prohibiting  an  orderly  boycott.  Among  other  things, 
he  said :  ^^ 

"  This  proposition,  that  it  is  unlawful  for  men  to  do 
collectively  what  they  may  do,  without  wrong,  individ- 
ually, was  enunciated  more  than  a  century  and  a  half 
ago,  when  all  manner  of  association  and  cooperation, 
among  men,  offensive  to  the  king,  or  not  in  the  interest 
of  despotic  power  or  the  ruling  classes,  or  not  approved 
by  the  Judges  were  declared  by  the  courts  to  be  criminal 
conspiracies.  It  was  promulgated  at  a  time  .  .  . 
when  laborers  had  no  rights  their  employers  or  the 
courts  were  bound  to  respect.  The  idea  of  the  power 
of  men  in  association  has  always  been  abhorrent  to 
despots,  and  to  those  who  wish  to  oppress  their  fellow 
men,  because  its  free  exercise  is  fatal  to  despotism  and 
oppression.  The  strength  it  imparts  carries  its  own 
protection.  In  all  ages  those  who  seek  to  deprive  the 
people  of  their  rights  justify  their  action  by  ancient  and 

60  83  Fed.,  p.  930. 


WHY  THE  PEOPLE  DISTKUST       153 

obsolete  precedents,  and  by  coining  definitions  suited 
to  their  ends.  In  '  that  codeless  myriad  of  precedent/ 
running  back  to  the  Dark  Ages  called  the  '  Common 
Law/  it  is  not  difficult  to  find  a  precedent  for  inflicting 
any  injustice  or  oppression  on  the  common  people.  But 
these  precedents,  so  shocking  to  our  sense  of  right,  so 
inimical  to  our  constitution  and  social  and  economic 
conditions,  and  so  subversive  of  the  liberty  of  men, 
should  be  permitted  to  sleep  in  profound  oblivion. 
They  neither  justify  nor  palliate  encroachments  on  the 
natural  and  constitutional  rights  of  the  citizens.  .  .  . 
What  each  individual  member  of  a  labor  organization 
may  lawfully  do,  acting  singly,  becomes  (under  the  rule 
adopted  in  that  case)  an  unlawful  conspiracy  when  done 
by  them  collectively.  Singly,  they  may  boycott ;  collect- 
ively, they  cannot.  The  individual  boycott  is  lawful,  be- 
cause it  can  accomplish  little  or  nothing.  The  collective 
boycott  is  unlawful  because  it  might  accomplish  some- 
thing. People  can  only  free  themselves  from  oppression 
by  organized  force.  No  people  could  gain  or  maintain 
their  rights  or  liberties,  acting  singly,  and  any  class  of 
citizens  in  the  state  subject  to  unjust  burdens  or  oppres- 
sion can  only  gain  relief  by  combined  action.  ...  It 
was  the  recognition  of  these  truths  that  prompted  the 
promulgation  of  the  proposition  we  are  discussing. 
The  doctrine  (announced  by  the  majority  of  the  court) 
compels  every  man  to  be  a  stranger  in  action  to  every 
other  man.  It  is  a  doctrine  abhorrent  to  freemen.  It 
is  in  hostility  to  a  law  of  man's  nature,  which  prompts 
him  to  associate  with  his  fellows  for  his  protection,  de- 
fense,  and   improvement.     Under  its   operation  every 


154         OUE  JUDICIAL  OLIGAECHY 

religious,  political,  or  social  organization  in  the  coun- 
try may  be  enjoined  from  combined  action,  if  their  re- 
ligious faith  or  political  creed  or  practice  is  obnoxious 
to  the  judge.  It  was  originally  designed  for  this  very 
purpose." 

On  a  subsequent  page,  the  same  learned  justice  said : 

"  While  laborers,  by  the  application  to  them  of  the 
doctrine  we  are  considering,  are  reduced  to  individual 
action,  it  is  not  so  with  the  forces  arrayed  against  them. 
A  corporation  is  an  association  of  individuals  for  com- 
bined action;  trusts  are  corporations  combined  together 
for  the  very  purpose  of  collective  action  and  boycotting ; 
and  capital,  which  is  the  product  of  labor,  is  in  itself 
a  powerful  collective  force.  .  .  .  What  is  '  competi- 
tion '  when  done  by  capital  is  '  conspiracy '  when  done 
by  the  laborers.  No  amount  of  verbal  dexterity  can 
conceal  or  justify  this  glaring  discrimination." 

In  discussing  the  decisions  of  the  courts  relating 
to  industrial  disputes,  I  cannot,  of  course,  refer  to 
all  the  cases  on  the  subject.  I  have  not  referred  to 
the  sailors'  case,'^'^  wherein  it  is  held  that  the  con- 
stitutional prohibition  against  "  slavery  "  and  "  in- 
voluntary servitude  "  does  not  apply  to  sailors  and 
that  this  class  of  laborers  may  still  he  held  to  in- 
voluntary servitude.  I  have  not  stopped  to  call  at- 
tention to  the  inconsistency  betv7een  the  decision  in 
the  Debs  case,'^^  v^^herein  it  is  held  that  the  control 

70  Robertson  v.  Baldwin,  165  U.  S.  275. 

71  158  U.  S.  564. 


.WHY  THE  PEOPLE  DISTRUST      155 

of  Congress  over  Interstate  Commerce  is  so  complete 
that  it  may  regulate  the  conduct  of  the  employes 
engaged  therein  to  the  extent  of  enjoining  them  from 
going  on  a  sympathetic  strike,  and  the  decision  in 
the  Adair  case,'^-  wherein  it  is  held  that  Congress  has 
so  little  power  over  the  conduct  of  those  engaged  in 
Interstate  Commerce  that  it  cannot  lawfully  forbid 
employers  engaged  therein  discharging  employes, 
merely  because  of  the  employes'  membership  in  a 
labor  union.  I^Teither  have  I  dealt  with  the  cases 
permitting  laborers  to  be  kidnapped  in  order  that 
they  might  be  placed  on  trial  in  localities  where  they 
could  not  have  lawfully  been  taken  for  trial."^^ 
These  cases  and  others  like  them  have  aroused  great 
bitterness  on  the  part  of  the  working  classes  against 
the  courts  and  have  been  thoroughly  discussed  in 
the  labor  and  radical  press  of  the  country.  The  dis- 
senting opinions  in  the  Pettibone,  Robertson  and 
Adair  cases  certainly  show  that  there  is  some  founda- 
tion for  the  hostile  criticism  which  has  been  leveled 
at  the  Court's  acts  in  these  and  kindred  cases. 

I  have  simply  tried  to  gather  together,  on  this 
branch  of  the  discussion,  sufficient  of  the  decisions  to 

72  208  U.  S.  161. 

73  Pettibone  v.  Nichols,  203  U.  S.  192.  See  also,  U.  S.  v. 
Rauseher,  119  U.  S.  419;  Hyatt  v.  Corkran,  188  U.  S.  691; 
Munsey  v.  Clough,  196  U.  S.  364;  Warren  v.  U.  S.,  183  Fed. 
718.  Also,  hearings  May  27  and  29,  1911,  on  House  Resolu- 
tion No.  6,  published  in  pamphlet  form,  relating  to  the  extra- 
dition of  John  J.  McNamara. 


156        OUR  JUDICIAL  OLIGAECHY 

sliow  the  general  and  well  settled  rules  of  law  whlcli 
the  courts  have  devised  in  this  country  to  govern 
trade  disputes  between  capital  and  organized  labor. 
These  rules  speak  for  themselves.  The  restrictions 
they  place  upon  labor  have  been  recently  summarized 
by  an  able  law  writer  as  follows :  '^ 

"They  (employes)  are  not  permitted  to  strike  to 
compel  men  to  join  the  Union.  They  are  not  permit- 
ted, in  even  a  lawful  strike,  to  employ  pickets  to  per- 
suade men  not  to  take  employment  as  strike  breakers, 
nor  to  maintain  banners  before  an  establishment  giving 
notice  of  a  strike  in  progress  there.  They  are  not  per- 
mitted to  enter  upon  a  merely  sympathetic  strike  against 
employers  with  whom  they  have  no  trade  dispute,  and 
a  strike  to  secure  to  the  Union  the  right  to  pass  upon 
grievances  between  individual  members  and  their  em- 
ployers is  considered  a  sympathetic  strike.  They  are 
not  permitted  to  exact  by  strike  the  payment  of  a  pen- 
alty by  an  employer  for  violation  of  Union  regulations. 
They  will  not  be  accorded  judicial  aid,  either  as  or- 
ganizations or  as  individuals,  to  prevent  blacklisting  by 
a  combination  of  employers." 

While  the  foregoing  was  intended  as  a  summation 
of  the  law  of  Massachusetts  on  the  subject,  it  prac- 
tically states  the  law  of  the  whole  country  on  the 
subject  as  well,  and  is  certainly  as  liberal  to  the  em- 
ployes as  the  rules  laid  down  by  the  Federal  Courts. 

74 "  Labor  questions  in  the  Courts  of  Massachusetts,"  by 
Arthur  March  Brown,  42  Am.  Law  Review,  706,  p.  733. 


WHY  THE  PEOPLE  DISTKUST       157 

Turn  now  to  the  statement  of  what  the  employer 
may  do,  and  you  read  that  he  has  an  unrestricted 
right  to  discharge,  to  blacklist  and  to  lock  out  his 
employes,  and  that  the  injunctive  process  of  our 
courts  with  its  arbitrary  and  despotic  power  to  pun- 
ish and  imprison  without  a  jury  trial,  is  always  at 
his  command.'^^ 

Just  as  the  English  judges  of  the  last  century 
seemed  incapable  of  understanding  that  the  "  Statute 
of  Laborers  "  had  been  repealed  and  that  the  day 
of  individual  contract  between  employer  and  em- 
ployed had  arrived,  so  our  judges  seem  unable  to 
grasp  the  idea  that  individual  contract  between  em- 
ployer and  employed  has  been  superseded  by  collect- 
ive action.  The  English  judges,  however,  could 
offer  but  feeble  opposition  to  the  advance  of  the  new 
order,  for  the  Legislative  branch  of  that  government 
was  supreme,  and  its  laws  were  as  binding  upon  the 
judges  as  upon  the  humblest  individual  in  the  land. 
With  us,  however,  the  case  is  different.  The  judges 
have  assumed  a  power  which  makes  their  will  superior 
to  the  popular  will.  They  have  raised  the  issue, 
whether  the  will  of  the  people  or  the  opinions  of 
judges  shall  constitute  the  supreme  law  of  the  land. 

Turning  now  to  the  class  of  cases  which  deal  with 
"  property  interests  "  and  "  vested  rights  "  we  find 

75  "The  Rationale  of  the  Injunction,"  by  Wm.  Trickett, 
Dean  of  Dicldnson's  School  of  Law,  Carlisle,  Pa.,  42  Am. 
Jjaw  Review. 


158         OUR  JUDICIAL  OLIGARCHY 

no  lack  of  initiative  and  enterprise  on  the  part  of 
the  courts  in  protecting  and  advancing  such  rights. 
If  our  courts  have  been  reactionary  where  the  rights 
of  the  individual  were  concerned,  they  certainly  have 
been  progressive  where  the  rights  of  property  were 
involved.  We  hear  much  in  these  days  of  the  dan- 
gers arising  from  great  wealth  and  of  the  menace 
special  privilege  is  to  our  institutions.  We  seldom 
stop  to  think  that  the  twin  pillars  upon  which  the 
whole  structure  of  special  privilege  rests  in  this  coun- 
try, are  two  decisions  of  the  Supremo  Court  of  the 
United  States. 

In  1795  the  Legislature  of  Georgia  sold  about 
500,000  acres  of  public  land  belonging  to  that  State 
to  various  parties  and  it  was  subsequently  claimed 
that  the  legislators  had  been  unduly  and  corruptly 
influenced  to  make  the  sale  by  the  purchasers  of  the 
land.  At  any  rate,  the  Legislature,  as  soon  as  it 
assembled  the  succeeding  year,  immediately  passed 
an  Act  to  rescind  the  sale  of  the  year  before,  setting 
forth  in  great  detail  the  fraud  and  bribery  by  which 
the  sale  had  been  effected.  Thereafter,  an  action 
was  brought,  apparently  collusive  in  character,  by 
one  Fletcher,  against  the  defendant  Peck,  from  whom 
Fletcher  purchased  certain  of  the  lands  in  question, 
and  Peck,  in  his  turn  derived  title  from  the  original 
purchasers.'^^  Concerning  the  collusive  character  of 
the  action  and  its  apparent  purpose  not  to  settle  any 
76  Fletcher  v.  Peck,  6  Crancli,  87. 


WHY  THE  PEOPLE  DISTEUST       159 

real  controversy,  but  to  establish  the  validity  of  the 
titles  j)rociired  through  the  fraudulent  purchase,  the 
Chief  Justice,  in  his  opinion,  said : 

"  I  have  been  very  unwilling  to  proceed  to  the  decision 
of  this  cause  at  all.  It  appears  to  me  to  bear  strong 
evidence  upon  the  face  of  it  of  being  a  mere  feigned  case. 
It  is  our  duty  to  decide  on  the  rights,  but  not  on  the 
speculations  of  parties." 

E'evertheless,  the  Court  lent  itself  to  the  purpose 
of  the  suit  and  decided  the  case.  It  would  have  been 
sufficient  for  the  decision,  of  course,  to  hold,  if  such 
was  the  fact,  that  the  defendant.  Peck,  was  an  in- 
nocent purchaser  of  the  lands  from  those  who  ac- 
quired them  originally  of  the  State,  and  let  the 
decision  stop  at  that  point.  Either  there  was  some 
doubt  in  the  Court's  mind  as  to  the  innocent  char- 
acter of  Peck's  purchase  from  the  others,  or  for  some 
other  reason  the  Court  thought  it  necessary  to  go 
further  and  discuss  the  question  of  how  far,  if  at  all, 
grants  by  the  Legislature  of  a  State,  procured  by 
bribery,  could  be  inquired  into.  In  the  opinion,  the 
Chief  Justice  says: 

"  That  corruption  should  find  its  way  into  the  govern- 
ments of  our  infant  republics,  and  contaminate  the  very 
source  of  legislation,  or  that  impure  motives  should, 
contribute  to  the  passage  of  a  law,  or  the  formation  of  a 
legislative  contract,  are  circumstances  most  deeply  to 
be  deplored.     ...     It  may  well  be  doubted  how  far 


160         OUR  JUDICIAL  OLIGARCHY 

the  validity  of  a  law  depends  upon  the  motives  of  its 
framers,  and  how  far  the  particular  inducements,  oper- 
ating on  members  of  the  supreme  sovereign  power  of  a 
state,  to  the  formation  of  a  contract  by  that  power,  are 
examinable  in  a  court  of  justice.  If  the  principle  be 
conceded,  that  an  act  of  the  supreme  sovereign  power 
might  be  declared  null  by  a  court,  in  consequence  of 
the  means  which  procured  it,  still  would  there  be  much 
difficulty  in  saying  to  what  extent  those  means  must  be 
applied  to  produce  this  effect.  Must  it  be  direct  cor- 
ruption, or  would  interest  or  undue  influence  of  any 
kind  be  sufficient?  Must  the  vitiating  cause  operate 
on  a  majority,  or  on  what  number  of  the  members? 
Would  the  act  be  null,  whatever  might  be  the  wish  of 
the  nation,  or  would  its  obligation  or  nullity  depend 
upon  the  public  sentiment?  If  the  majority  of  the 
legislature  be  corrupted,  it  may  well  be  doubted,  whether 
it  be  within  the  province  of  the  judiciary  to  control  their 
conduct  and,  if  less  than  a  majority  act  from  impure 
motives,  the  principles  by  which  judicial  interference 
would  be  regulated,  is  not  clearly  discerned." 

The  suggestions  of  the  Chief  Justice,  concerning 
the  inability  of  a  Court  to  grant  relief  against  the 
corrupt  grants  of  the  Legislatures,  were  seized  upon 
by  the  courts,  and  the  rule  -which  he  suggested, 
speedily  became  the  settled  law.'^'^  In  an  early  case 
■wherein   a   railroad   company  had   bought  valuable 

77  Cooley  Constitutional  Limitations,  7th  Edition,  p.  257, 
and  cases  cited. 


WHY  THE  PEOPLE  DISTEUST       161 

privileges  from  a  Legislature,  the  Court,  when  ap- 
plied to  by  the  public  for  relief,  said :  "^^ 

"  Official  morality  in  us  requires  that  we  shall  not 
assume  the  authority  to  judge  of  the  official  morality 
of  the  Legislature.  For  the  faithfulness  and  honesty 
of  their  public  acts,  we  repeat,  they  are  responsible  to 
the  people  alone  and  not  by  means  of  a  trial  before  the 
courts/' 

This  doctrine  soon  came  to  be  applied  to  the  acts 
of  boards  of  aldermen  and  municipal  legislatures 
generally.  Concerning  the  motives  of  the  members 
of  the  Board  of  Supervisors  of  San  Erancisco  in 
passing  an  ordinance  alleged  to  have  been  improperly 
secured,  the  Supreme  Court  of  the  United  States 
recently  said :  "^^ 

"  Their  motives,  considered  as  the  moral  inducement 
for  their  votes,  will  vary  with  the  different  members 
of  the  legislative  body.  The  divers  character  of  such 
motives  and  the  impossibility  of  penetrating  into  the 
hearts  of  men  and  ascertaining  the  truth,  precludes  all 
such  inquiries  as  impracticable." 

Thus,  through  the  mere  dictum  of  the  Court  in 
the  collusive  action  of  Eletcher  v.  Peck,  has  the  law 
become  established  that  the  bribery  and  corruption 
by  which  any  grant  or  valuable  right  is  obtained 

78Sunbury  &  Erie  R.  R.  Co.  v.  Cooper,  33  Pa.  St.  278. 
79  Soon  Hing  v.  Crowley,  113  U.  S.  703-11. 


162'        OUR  JUDICIAL  OLIGARCHY 

from  a  Legislature,  national,  state  or  municipal,  will 
not  be  examined  into  by  a  Court  for  the  purpose  of 
relieving  against  the  fraudulent  or  corrupt  transac- 
tion. The  official  morality  of  the  judges,  so  they  say, 
will  not  permit  them  to  inquire  into  the  official 
morality  of  the  members  of  the  Legislatures.  This, 
of  course,  was  a  tremendous  gain  for  what  is  termed 
property  rights  and  vested  interests,  but  there  was 
still  the  possibility  that  a  succeeding  Legislature 
would  rescind  the  corrupt  act  of  its  predecessors  and 
thereby  destroy  the  value  of  that  which  had  been  cor- 
ruptly obtained. 

As  the  courts  declared  that  for  every  corrupt  act, 
Legislators  were  responsible  to  the  public  alone,  the 
public  was  certain  speedily  to  replace  the  unworthy 
legislators  with  worthy  ones,  and  the  latter  might 
protect  the  public  interests  by  repealing  the  grants 
which  had  been  corruptly  made. 

Another  case  soon  arose,  however,  in  which  a  doc- 
trine was  announced  which  closed  this  door  of  hope 
to  the  public. ^*^  That  case  arose  out  of  a  sordid 
contest,  semi-political  and  semi-religious  in  char- 
acter, among  the  Trustees  of  Dartmouth  College  to 
obtain  control  of  that  institution. 

The  brief  account  here  given  of  the  facts  leading 
up  to  the  Dartmouth  College  decision,  is  condensed 
from  the  historical  discussion  of  that  case  by  Jesse 

80  Trustees  of  Dartmouth  College  v.  Woodward,  4  Wheaton, 
517. 


WHY  THE  PEOPLE  HISTEUST       163 

E.  Orton,  in  his  pamplilct,  "  The  Confusion  of  Prop- 
erty with  Privilege,"  pnhlished  in  1909  by  the  Com- 
mittee to  Inquire  into  the  Status  of  Democracy. 

Dartmouth  College  was  founded  in  1769  by  virtue 
of  a  charter  by  the  then  Governor  of  New  Hamp- 
shire in  the  name,  of  course,  of  the  English  King. 
The  charter  provided  for  the  government  of  the  in- 
stitution by  twelve  trustees.  The  first  President, 
Eleazer  Wheelock,  who  was  named  in  the  charter 
and  was  given  the  privilege  of  appointing  his  suc- 
cessor, died  in  1779,  having  appointed  his  son,  John 
Wheelock,  to  succeed  him. 

About  the  year  1800,  two  factions  in  the  Board 
of  Trustees  arose.  One  was  headed  by  President 
Wheelock,  who  was  a  Presbyterian,  while  his  op- 
ponents in  the  Board  were  Congregationalists. 

After  a  while  the  struggle  took  on  a  political  tinge, 
and  the  faction  of  President  Wheelock  became  identi- 
fied with  the  anti-Federalists  and  the  other  faction 
was  strongly  Eederal.  While  the  Eederalists  were  in 
control  of  the  State,  the  Board  of  Trustees  assumed 
to  remove  President  Wheelock  from  office. 

The  anti-Eederalists  in  1816,  elected  William 
Plumer  to  the  office  of  Governor  and  the  new  Gov- 
ernor and  the  Legislature  passed  acts  amending  the 
college  charter,  the  principal  effect  being  to  increase 
the  number  of  trustees  from  twelve  to  twenty-one, 
and  Wheelock  was  restored  to  the  position  of  Presi- 
dent of  the  College.     The  old  anti-Wheelock  Trus- 


164         OUR  JUDICIAL  OLIGARCHY 

tees  refused  to  take  part  in  the  reorganization  of  tlie 
college,  and  finally  brought  an  action  against  Wood- 
ward, secretary  and  treasurer  of  the  corporation,  as 
it  was  reorganized,  under  the  new  Board  of  Trustees, 
to  recover  the  corporate  books  and  other  corporate 
records. 

The  Supreme  Court  of  ^New  Hampshire  decided 
the  case  against  the  Trustees  and  in  favor  of  the 
Wheelock,   anti-Federal  and  Presbyterian  faction.^  ^ 

Daniel  Webster,  a  graduate  of  the  college,  had  been 
retained  by  President  Wheelock,  sometime  before  the 
passage  of  the  act  increasing  the  Board  of  Directors, 
but  when  the  litigation  began,  was  induced  to  aban- 
don Wheelock  and  espouse  the  cause  of  the  Pederalist 
faction  of  the  Board.  See  Life  of  Webster  by  Henry 
Cabot  Lodge.^^     In  this  work,  Mr.  Lodge  says: 

"  Mr.  Webster  was  fully  aware  that  he  could  rely,  in 
any  aspect  of  the  case,  upon  the  sympathy  of  Marshall 
and  Washington  (Associate  Justice  Bushrod  Washing- 
ton). He  was  equally  certain  of  the  unyielding  oppo- 
sition of  Duvall  and  Todd ;  the  other  three  judges,  John- 
son, Livingston  and  Story,  were  known  to  be  adverse 
to  the  college,  but  were  possible  converts.  The  first 
point  was  to  increase  the  sympathy  of  the  Chief  Justice 
to  an  eager  and  even  passionate  support.  Mr.  Webster 
knew  the  chord  to  strike,  and  he  touched  it  with  a  mas- 

81  Report  of  this  case  is  re-printed  with  arguments  of  coun- 
sel, 65  N.  H.  473. 

82  "  Life  of  Webster  "  in  American  Statesman  Series,  p.  1. 


WHY  THE  PEOPLE  DISTEUST       165 

ter  hand.  This  was  the  '  something  left  out,'  of  which 
we  know  the  general  drift,  and  we  can  easily  imagine 
the  effect." 

Mr.  Webster  in  publishing  his  argument  in  this 
case  always  admitted  that  there  was  "  something  left 
out "  and  it  is  this  expression  to  which  Mr.  Lodge 
referred  in  the  above  quotation. 

Eurther  referring  to  the  manner  in  which  Mr. 
Webster  played  upon  the  prejudices  of  the  Chief 
Justice,  because  of  his  intense  Eederalism,  Mr.  Lodge 
says :  ^^ 

"  In  the  midst  of  all  the  legal  and  constitutional  ar- 
guments, relevant  and  irrelevant,  even  in  the  pathetic 
appeal  which  he  used  so  well  in  behalf  of  his  alma 
mater,  Mr.  Webster  boldly  and  yet  skillfully  introduced 
the  political  view  of  the  case.  So  delicately  did  he  do 
it  that  an  attentive  listener  did  not  realize  that  he  was 
straying  from  the  field  of  *mere  reason'  into  that  of 
political  passion.  Here  no  man  could  equal  him  or  help 
him,  for  here  his  eloquence  had  full  scope,  and  on  this 
he  relied  to  arouse  Marshall,  whom  he  thoroughly  un- 
derstood. In  occasional  sentences  he  pictured  his  be- 
loved college  under  the  wise  rule  of  Federalists  and  the 
church.  He  depicted  the  party  assault  that  was  made 
upon  her.  He  showed  the  citadel  of  learning  threat- 
ened with  unholy  invasion  and  falling  helplessly  into 
the  hands  of  Jacobins  and  free-thinkers." 

83/(2.,  p.  88. 


166         OUR  JUDICIAL  OLIGARCHY 

Mr.  Lodge  sliows  that  the  point  upou  which  the 
case  was  actually  decided,  namely  that  a  charter  was 
a  contract  and  consequently  that  under  the  Constitu- 
tion, no  law  could  be  passed  which  impaired  it,  was 
really  suggested  to  Mr.  Webster  by  one  of  the  trus- 
tees, who  was  not  a  lawyer,  and  that  Mr.  Webster 
thought  little  of  the  point  and  devoted  but  small  space 
to  it  in  the  argument  and  in  his  brief.^^  He  seems 
to  have  depended  more  upon  other  legal  points,  but 
particularly  he  sought  to  inflame  the  passions  of  the 
Chief  Justice  and  arouse  his  well  known  hostility  to 
Jefferson, 

Of  course  the  Jacobins  mentioned  by  Webster  in 
his  argument  were  the  followers  of  Jefferson  and 
the  free-thinkers  were  Governor  Plumer  and  his  sup- 
porters, who  were  then  carrying  on  a  struggle  for 
equality  of  religious  denominations  in  New  Hamp- 
shire. 

Mr.  Lodge  gives  this  further  description  of  Mr. 
Webster's  argument : 

"  As  the  tide  of  his  resistless  and  solemn  eloquence, 
mingled  with  his  masterly  argument,  flowed  on,  we  can 
imagine  how  the  great  Chief  Justice  roused  like  an  old 
warhorse  at  the  sound  of  the  trumpet.  The  words  of 
the  speaker  carried  him  back  to  early  years  of  the  cen- 
tury, when,  in  the  full  flush  of  manhood,  at  the  head 
of  his  court,  the  last  stronghold  of  Federalism,  the  last 

84  See  also,  Dartmouth  College  Case  Causes,  by;  John  M. 
Shirley. 


WBY  THE  PEOPLE  DISTRUST       167 

bulwark  of  sound  government,  he  had  faced  the  power 
of  the  triumphant  Democrats.  Once  more  it  was  Mar- 
shall against  Jefferson  —  the  judge  against  the  presi- 
dent. Then  he  had  preserved  the  ark  of  the  Constitu- 
tion. Then  he  had  seen  the  angry  waves  of  popular 
feeling  breaking  vainly  at  his  feet.  Now,  in  his  old 
age,  the  conflict  was  revived.  Jacobinism  was  raising 
its  sacrilegious  hand  against  the  temples  of  learning, 
against  the  friends  of  order  and  good  government.  The 
joy  of  battle  must  have  glowed  once  more  in  the  old 
man's  breast  as  he  grasped  anew  his  weapons  and  pre- 
pared with  all  the  force  of  his  indomitable  will  to  raise 
yet  another  constitutional  barrier  across  the  path  of  his 
ancient  enemies." 

But  after  all  had  been  said  and  done,  the  Court, 
Mr.  Lodge  concludes,  was  five  to  two  against  Mr. 
Webster  and  the  old  Board  of  Trustees.  The  Chief 
Justice,  however,  succeeded  in  preventing  a  decision 
and  the  Court  adjourned  for  the  term.  Then  began 
a  campaign  to  "  get  at,"  to  use  the  expression  of  Mr. 
Lodge,  enough  of  the  other  judges  so  that  uniting 
with  the  Chief  Justice,  they  might  constitute  a  ma- 
jority. Mr.  Shirley,  in  his  work  already  cited,  gives 
an  excellent  account  of  this  process,  and  tells  us  how 
the  judges  were  seen  by  personal  and  political  friends 
and  how  certain  pamphlets  and  arguments  were  sent 
to  some  and  not  to  others,  although  the  case  had  been 
closed  and  taken  under  advisement.  Mr.  Lodge 
says: 


168         OUE  JUDICIAL  OLIGAKCHY 

"  The  whole  business  was  managed  like  a  quiet, 
decorous  political  campaign." 

Chancellor  Kent,  himself  an  intense  Federalist, 
was  brought  into  the  matter,  and  his  influence  was 
brought  to  bear  upon  some  of  the  judges  of  the  Su- 
preme Court. 

Without  going  further  into  the  details  of  this  un- 
pleasant transaction,  suffice  it  for  our  purposes,  that 
the  work  of  influencing  the  judges  was  well  done,  and 
finally  resulted  in  bringing  all  of  them,  except  two, 
into  agreement  with  the  Chief  Justice. 

The  case  was  then  decided.  The  Federalists  had 
gained  a  signal  political  victory.  More  than  all, 
however,  the  doctrine  had  been  declared  that  every 
charter,  franchise,  and  privilege,  such  as  exemption 
from  taxation,  and  the  like,  which  any  corporation 
could  secure  from  a  legislature,  was  a  contract  and 
could  not  be  in  any  way  impaired  by  subsequent  leg- 
islative action. 

Couple  with  this  proposition  the  further  one  origi- 
nating in  Fletcher  v.  Peck,  that  however  fraudulent 
the  means  by  which  such  franchise,  charter  or  priv- 
ilege was  acquired,  the  court  was  powerless  to  give 
relief  because  of  the  fraud,  and  you  have  the  founda- 
tion upon  which  our  colossal  fortunes  rest,  which 
grow  out  of  special  privilege. 

Fletcher  v.  Peck  made  bribery  of  legislatures  safe 
for  the  great  interests  engaged  in  it,  and  the  Dart- 
mouth College  case  made  it  profitable. 


WHY  THE  PEOPLE  DISTKUST       169 

The  occasional  conviction  of  a  petty  legislative 
bribe  taker  or  bribe  giver,  always  the  agent  of  some 
one  higher  np,  is  "usually  made  the  occasion  for  the 
Court  to  lecture  the  convicted  party  upon  the  serious 
nature  of  this  offense.  The  Court  is  properly  in- 
dignant at  such  an  offense,  but  it  must  always  be 
remembered  that  without  the  decisions  I  have  men- 
tioned, and  the  body  of  law  built  thereon,  bribery  of 
legislatures  would  be  practically  unknovsm,  for  it 
would  be  neither  safe  nor  profitable  to  those  great 
interests  which  usually  suggest  the  crime,  and  always 
profit  by  it. 

Chancellor  Kent,  speaking  approvingly  of  the 
Dartmouth  College  case,  shortly  after  its  rendition, 
said: 

"  The  decision  in  that  case  did  more  than  any  other 
single  act  proceeding  from  the  authority  of  the  United 
States,  to  throw  an  impregnable  barrier  around  all 
rights  and  franchises  derived  from  the  grant  of  govern- 
ment." ^^ 

Some  fifty  years  later,  Mr.  Justice  Cole,  of  the 
Iowa  Supreme  Court,  said: 

"  The  practical  effect  of  the  Dartmouth  College  de- 
cision is  to  exalt  the  rights  of  the  few  above  those  of  the 
many.  And  it  is  doubtless  true  that  under  the  authority 
of  that  decision,  more  monopolies  have  been  created  and 
perpetuated  and  more  wrongs  and  outrages  upon  the 

85  1  Kent.  Comm.  419. 


170        OUK  JUDICIAL  OLIGAECHY 

people  effected,  than  by  any  other  single  instrumentality 
in  the  government."  ^° 

A  little  later,  that  greatest  of  Constitutional  Law- 
yers, Judge  Cooley,  said : 

"  It  is  under  the  protection  of  the  decision  in  the 
Dartmouth  College  case  that  the  most  enormous  and 
threatening  powers  in  our  country  have  been  created; 
some  of  the  great  and  wealthy  corporations  actually 
having  greater  influence  in  the  country  at  large,  and 
upon  the  legislation  of  the  country,  than  the  states  to 
which  they  owe  their  corporate  existence.  Every  privi- 
lege granted  or  right  conferred  —  no  matter  by  what 
means  or  on  what  pretense  —  being  made  inviolable  by 
the  constitution,  the  government  is  frequently  found 
stripped  of  its  authority  in  very  important  particulars 
by  unwise,  careless  and  corrupt  legislation;  and  a  clause 
of  the  federal  constitution  whose  purpose  was  to  preclude 
the  repudiation  of  debts  and  just  contracts,  protects 
and  perpetuates  the  evil.  To  guard  against  such  calam- 
ities in  the  future,  it  is  customary  now  for  the  people 
in  forming  their  constitutions,  to  forbid  the  granting 
of  corporate  powers,  except  subject  to  amendment  and 
repeal,  but  the  improvident  grants  of  an  early  day  are 
beyond  their  reach."  ^^ 

If  a  charter  is  a  contract,  then  it  would  seem  that 
every  charter  procured  by  fraud  must  be  voidable, 
for  nothing  is  better  settled  in  the  law  than  that 

86  Dubuque  v.  Railroad  Co.,  39  lowaj  95,  96. 

87  Cooley  Constitutional  Limitations,  279-80  B. 


.WHY  THE  PEOPLE  DISTEUST      171 

fraud  vitiates  every  contract.  Under  the  rule  of 
Fletcher  v.  Peck,  however,  a  charter  cannot  be  in- 
validated because  it  was  procured  by  fraud,  no  matter 
how  gross  or  open  the  fraud  may  be.  The  states 
organized  after  the  Dartmouth  College  decision,  were 
able,  as  Judge  Cooley  says,  to  guard  themselves 
against  the  consequences  of  that  decision  by  providing 
in  their  constitutions  against  the  granting  of  corpo- 
rate powers,  except  as  they  were  subject  to  amend- 
ment and  repeal.  Then  followed  the  Eburteenth 
Amendment  to  the  Constitution,  designed  for  the 
protection  of  the  recently  freed  slaves,  providing  in 
substance  that  no  State  should  deprive  "  any  person 
of  life,  liberty  or  property  without  due  process  of 
law  "  or  "  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  laws."  This  provision 
was  immediately  seized  upon  by  the  courts  and  made 
to  include  corporations,  and  thereby  grants  and 
franchises  to  corporations  have  been  rendered  more 
valuable  even  than  under  the  authority  of  the  Dart- 
mouth College  decision. 


CHAPTEE  yi 

DAT^GEES  OF  THE  POPULAR  DISTRUST  OP  THE  COURTS 

THE  judiciary  is  constitutionally  the  weakest  de- 
partment of  the  government.  John  Jay,  the 
first  Chief  Justice  of  the  Supreme  Court  of  the 
United  States,  resigned  because  the  Court  had  so  little 
power,  under  the  Constitution,  that  he  felt  it  a  waste 
of  time  to  remain  in  that  office.  He  was  tendered 
a  reappointment  by  President  Adams  in  1800,  but 
declined  it,  saying: 

"  I  left  the  Bench  perfectly  convinced  that,  under  a 
system  so  defective,  it  would  not  obtain  the  energy, 
weight  and  dignity  which  was  essential  to  its  affording 
due  support  to  the  national  government;  nor  acquire 
public  confidence  and  respect  which,  as  the  last  resort 
of  the  justice  of  the  nation,  it  should  possess.  Hence, 
I  am  induced  to  doubt  both  the  expediency  and  pro- 
priety of  my  returning  to  the  Bench  under  the  present 
system."  ^ 

The  executive,  with  its  command  of  the  military 
forces,  and  Congress,  with  its  control  of  the  revenues, 
and  each  with  an  army  of  dependent   appointees, 

1  Pellew,  Life  of  Jay,  pp.  337-8. 

1T2 


DANGEES  OF  POPULAR  DISTRUST     173 

have  the  means  at  hand  for  the  enforcement  of  their 
respective  policies.  The  Judiciary  has  no  such 
power.  Judges  do  not  even  appoint  the  officers  who 
execute  their  decrees.  If  a  United  States  marshall 
should  decline  to  execute  the  decree  of  a  Federal 
Court,  what  could  the  Court  do  about  it  ?  The  mar- 
shal is  appointed  by  the  President  and  is  responsible 
to  the  President,  and  if  the  latter  directs  that  the 
particular  decree  shall  not  be  enforced,  and  the  peo- 
ple support  the  President,  that  ends  it.  If  a  sheriff 
declines  to  execute  the  mandate  of  a  State  Court, 
the  Court  is  powerless.  The  sheriff  is  elected  by 
the  people  of  a  county,  and  is  usually  removable  by 
the  governor  of  the  State.  If  the  people  and  the 
governor  support  the  sheriff  in  his  refusal  to  execute 
the  order  of  the  court,  the  order  will  remain  unexe- 
cuted and  will  accomplish  nothing. 

Without  the  confidence,  approval  and  support  of 
the  people,  all  the  opinions,  decrees  and  judgments 
of  the  courts  are  only  waste  paper.  While  judges, 
and  particularly  federal  judges,  are  farther  removed 
from  popular  control  than  any  other  public  officials, 
the  enforcement  of  their  orders  and  judgments  de- 
pends wholly  upon  the  confidence  and  good  will  of 
the  people.  At  this  point  lies  the  danger!  Inde- 
pendent of  the  popular  will  in  the  tenure  of  their 
office,  but  wholly  dependent  upon  it  for  the  enforce- 
ment of  their  judgments,  the  judges  are  constantly 
tempted  to  a  conflict,  in  which  they  must  always  be 


^74        OUR  JUDICIAL  OLIGAECHY 

worsted;  and  sometimes  at  great  cost  to  the 
conntry. 

Without  dwelling  upon  the  controversies  between 
the  courts  and  President  Jefferson,  or  the  later  ones 
waged  between  the  courts  and  President  Jackson,  I 
call  attention  only  to  two  or  three  instances  in  later 
years  where  the  opinions  of  the  courts  have  been 
left  without  support  in  public  sentiment.  The  Dred 
Scott  case  is  a  familiar  example.^  This  case  was 
brought  by  Dred  Scott,  a  former  slave,  to  secure  his 
freedom  because  he  had  been  taken  into  territory 
where  slavery  did  not  exist.  The  case  came  up  to 
the  Supreme  Court  of  the  United  States,  from  the 
District  of  Missouri.  The  Court  held  that  Dred 
Scott  was  not  a  citizen  of  Missouri  and 

"  not  entitled  as  such  to  sue  in  its  courts,  and  conse- 
quently that  the  Circuit  Court  had  no  jurisdiction  of 
the  case."  * 

This  was  all  that  it  was  necessary  to  decide,  but  the 
Court,  hoping  to  shape  the  political  policy  of  the 
country  on  the  subject,  and  to  lay  down  a  rule  to 
govern  other  cases,  went  further  and  held  in  effect 
that  the  Missouri  Compromise  was  unconstitutional, 
and  that  Congress  could  not  prohibit  slavery  in  the 
territories.^     This  decision  is,  therefore,  strikingly 

2  Dred  Scott  v.  Sandford,  19  Howard,  393. 

3  Id.,  p.  427. 
*Id.,  pp.  447-54. 


DANGEES  OF  POPULAR  DISTRUST     175 

like  the  recent  decisions  In  the  Standard  Oil  and 
Tobacco  cases.  In  these  cases  last  mentioned,  all 
that  it  "was  necessary  to  hold  was  that  the  acts  under 
consideration  violated  the  Anti-Trust  law,  but  the 
Court  went  further,  and  hoping  to  shape  the  politi- 
cal policy  of  the  country  on  the  subject  according 
to  its  own  economic  theory,  and  in  order  to  establish 
a  rule  to  apply  in  other  cases,  held  that  only  certain 
acts,  which  the  Court  in  the  future  might  characterize 
as  "  undue  "  restraints  of  trade,  would  violate  the 
statute.  In  his  debate  with  Lincoln,  half  a  century 
ago,  Judge  Douglas  speaking  of  the  Dred  Scott  de- 
cision, well  expressed  the  views,  then  and  now,  of 
those  who  argue  that  the  decision  of  a  Court  of  last 
resort  is  final.     He  said: 

"  As  a  lawyer,  I  feel  at  liberty  to  appear  before  the 
Court  and  controvert  any  principle  of  law  while  the 
question  is  pending  before  the  tribunal ;  but  when  the  de- 
cision is  made,  my  private  opinion,  your  opinion,  all 
other  opinions  must  yield  to  the  majesty  of  that  au- 
thoritative adjudication.  I  have  no  idea  of  appealing 
from  the  decision  of  the  Supreme  Court  upon  a  consti- 
tutional question,  to  the  decisions  of  a  tumultuous  town 
meeting.  ...  I  respect  the  decisions  of  that  august 
tribunal ;  I  shaU  always  bow  in  deference  to  them."  ^ 

Mr.  Lincoln  represented  and  stated  the  opposite 
view  many  times,  and  in  various  forms.     He  said : 

B  Lincoln  and  Douglas  Debates,  p.  16. 


176         OUR  JUDICIAL  OLIGAECHY 

"  I  have  expressed  heretofore,  and  I  now  repeat,  my 
opposition  to  the  Dred  Scott  decision.  ...  If  I 
wanted  to  take  Dred  Scott  from  his  master,  I  would 
be  interfering  with  property,  and  that  terrible  difficulty 
that  Judge  Douglas  speaks  of,  interfering  with  property, 
would  arise.  But  I  am  doing  no  such  thing  as  that ;  all 
that  I  am  doing  is  refusing  to  obey  it  as  a  political  rule. 
.  .  .  Judge  Douglas  said  last  night  that  before  the 
decision  he  might  advance  his  opinion,  and  it  might  be 
contrary  to  the  decision  when  it  was  made;  but  after 
it  was  made,  he  would  abide  by  it  until  it  was  reversed. 
Just  so !  We  let  this  property  abide  by  the  decision,  but 
we  will  try  to  reverse  that  decision.  We  will  try  to  put 
it  where  Judge  Douglas  would  not  object,  for  he  says 
he  will  obey  it  until  it  is  reversed.  Somebody  has  to 
reverse  that  decision,  since  it  is  made;  and  we  mean 
to  reverse  it,  and  we  mean  to  do  it  peaceably."  " 

Unfortunately  all  the  people  were  not  as  wise,  nor 
as  temperate  as  Mr.  Lincoln.  The  decision  was  re- 
versed, hut  it  was  not  reversed  "  peaceably."  An 
illustration  of  a  more  peaceful,  but  quite  as  effective 
a  method  of  setting  aside  a  judgment  of  the  Supreme 
Court  of  the  United  States  was  given  in  1859  by 
the  State  of  Wisconsin.'''  In  that  case,  the  Federal 
Courts  undertook  to  punish  a  man  named  Booth,  be- 
cause he  had  assisted  a  fugitive  slave  to  escape.     The 

6  From  a  speech  delivered  by  Mr.  Lincoln  at  Chicago,  111., 
July  10,  1858. 

7Ableman  v.  Booth,  11  Wis.  498. 


DANGEES  OF  POPULAR  DISTRUST     177 

Wisconsin  officials,  acting  nnder  the  direction  of  the 
Supreme  Court  of  the  State,  simply  set  Booth  at 
liberty,  and  though  the  Supreme  Court  of  the  United 
States  repeatedly  and  very  solemnly  reversed  the  de- 
cision of  the  Supreme  Court  of  Wisconsin,^  no  one 
paid  any  attention  to  it,  and  Booth  obtained  his 
liberty.^ 

The  legal  tender  cases  ^^  illustrate  how,  by  the  ad- 
dition of  Republican  Judges  to  a  Democratic  Su- 
preme Court,  an  unconstitutional  law  was  converted 
into  a  constitutional  one.  In  1862  Congress  had 
passed  a  law  which  made  United  States  notes  legal 
tender  in  payment  of  all  debts,  whether  public  or 
private,  without  regard  to  when  they  were  contracted. 
This  statute,  after  having  been  accepted  by  the  peo- 
ple, and  most  of  the  State  courts,  as  valid  for  a 
number  of  years,  was,  in  1869,  attacked  in  the 
Supreme  Court  of  the  United  States  as  unconstitu- 
tional. By  a  divided  Court,  the  law  in  question  was 
held  "  inconsistent  with  the  spirit  of  the  Constitu- 
tion "  and  therefore,  void.  Three  judges  dissented. 
Then  by  the  simple  device  of  adding  two  judges  to 

8  Ableman  v.  Booth  and  United  States  v.  Booth,  21  Howard, 
506. 

9  See  discussion  of  Ableman  v.  Booth  with  explanatory  note 
in  Selected  Opinions  of  Chief  Justices  Dixon  and  Ryan  of 
Wisconsin,  by  Gilbert  E.  Roe,  pp.  69-100. 

10  Hepburn  v.  Griswold,  8  Wallace,  603,  and  Knox  v.  Lee,  12 
Wallace,  457. 


178         OUR  JUDICIAL  OLIGARCHY 

the  bench  who  were  known  to  be  favorable  to  the  law, 
the  question  was  again  brought  up  and  the  law  was 
held  to  be  constitutional.^^ 

The  attempts  of  the  courts  to  interfere  with  the 
reconstruction  policy  of  the  government  following 
the  Civil  War  and  the  disastrous  consequences  to 
the  courts,  is  a  familiar  chapter  of  American  His- 
tory. ^^  Concerning  the  tendency  of  the  courts,  dur- 
ing the  last  few  years  to  again  provoke  a  conflict  with 
public  sentiment,  Prof.  Haines,  in  concluding  the 
chapters  of  his  work  just  cited,  says : 

"  The  courts  have  been  inevitably  drawn  into  the 
social  and  economic  conflicts  arising  in  the  course  of 
our  rapid  industrial  development,  and  there  is  an  in- 
creasing number  of  instances  in  which  judicial  authority 
is  being  challenged  in  such  a  manner  as  to  make  it  again 
the  subject  of  political  controversy." 

If  our  discussion  thus  far  has  meant  anything,  it 
has  shown  that  in  the  conflict  between  the  masses  of 
the  people  and  the  beneficiaries  of  special  privilege, 
the  courts  have,  according  to  popular  belief,  at  least, 
ranged  themselves  on  the  side  of  the  latter. 

On  the  20th  of  July  last,  an  incident  occurred  in 

11  Legal  Tender  cases,  12  Wallace,  457. 

12  These  cases  are  gathered  together  and  discussed  by  Charles 
Grover  Haines,  in  his  chapter  on  "  The  Conflict  Over  Judicial 
Powers,"  in  his  Studies  in  History,  Economics  and  Public 
Lmv,  edited  by  the  Faculty  of  Political  Science,  of  Columbia 
University. 


DANGEES  OF  POPULAR  DISTRUST     179 

the  Federal  District  Court  in  New  York  City  which 
was  widely  commented  upon  by  the  press  of  the 
country  as  tending  to  prove  that  there  was  one  law 
for  the  rich  man  and  another  for  the  poor  one  in  the 
Federal  Courts.  It  so  happened  that  at  the  time  in 
question,  two  men  were  sentenced  for  the  crime  of 
smuggling.  Both  sentences  were  imposed  on  picas 
of  guilty.  One  was  a  poor  man,  far  gone  with  con- 
sumption, whose  frauds  on  the  government  had  been 
trifling.  The  other  was  a  rich  man,  a  member  of 
a  very  large  importing  firm  whose  frauds  on  the 
government  had  run  well  over  the  million  mark,  and 
whose  goods  were  sold  to  the  fashionable  trade 
throughout  the  country.  The  former  received  a 
prison  sentence;  the  latter  was  merely  fined  twenty- 
five  thousand  dollars.  I  quote  from  one  of  the  nu- 
merous editorials  on  this  subject. ^^ 

"  On  July  20th,  while  he  (the  Federal  Judge)  sat  in 
the  United  States  District  Court  in  New  York,  two 
men  were  brought  up  for  sentence  for  smuggling.  One 
was  a  comparatively  small  offender.  He  pleaded  guilty 
to  frauds  on  the  Government  in  the  weighing  of  im- 
portations of  figs  and  cheese.  The  other  was  one  of  a 
syndicate  of  smugglers  whose  known  and  proved  smug- 
gling amounted  to  $1,400,000  worth  of  gowns  and  mil- 
linery goods.  The  little  smuggler  was  sentenced  to 
three  months  in  prison.  The  big  smuggler  was  dis- 
charged with  a  fine,  $25,000,  a  fraction  of  what  he  had 

J3  Philadelphia  North  American,  Aug.  1,  1911, 


180         OUR  JUDICIAL  OLIGx\RCHY 

swindled  from  the  government.  The  United  States  Dis- 
trict Attorney  protested :  '  I  would  rather  see  the  de- 
fendant get  one  day  in  jail  than  be  let  off  with  a  mil- 
lion-dollar fine.  He  visited  my  office  and  crawled  on 
his  knees  and  tried  to  kiss  my  hand  in  his  efforts  to 
get  me  to  consent  to  a  fine.'  In  addition  to  being  a 
leader  of  a  gang  of  rich  smugglers,  this  defendant  was 
a  bail  jumper." 

The  editorial,  after  referring  to  some  further  state- 
ments of  the  District  Attorney  to  the  effect  that  the 
defendant  had  tried  in  various  way  to  reach  him, 
concluded : 

"  We  do  not  insist  on  the  law's  pound  of  flesh.  We 
have  no  notion  that  the  law  should  be  vindictive.  But 
on  the  same  day  that  this  million-dollar  thief  was  set 
free  on  repayment  of  part  of  his  stealings  the  same 
judge  sent  a  poor  little  consumptive  Greek  to  jail  for 
frauds  trifling  in  comparison." 

In  the  same  editorial,  it  is  said : 

"  Once  let  the  people  be  thoroughly  convinced  that 
their  courts  are  not  impartial,  that  there  is  one  law  for 
the  rich  and  another  for  the  poor  and  the  seeds  of 
revolution  will  have  been  sowed." 

As  a  matter  of  fact,  while  the  dramatic  features  at- 
tending the  imposing  of  the  above-mentioned  sen- 
tences caused  the  affair  to  be  generally  commented 
upon  in  the  press  of  the  country,  there  was  nothing 


DANGERS  OF  POPULAR  DISTRUST     181 

unusual  about  it.  The  judge  who  imposed  the  sen- 
tences was  quite  within  his  right,  and  was  well  for- 
tified by  precedent  for  what  he  did.  Fines  for  the 
rich  law  breaker  and  prison  for  the  poor  one  is  the 
general  rule. 

The  distinction  that  was  made  by  the  New  York 
Court  in  the  afore-mentioned  cases  is  being  made 
every  day  in  the  year  by  the  courts  throughout  the 
country.  The  distinction  between  the  rich  law 
breaker  and  the  poor  one,  however,  in  the  matter  of 
the  sentence  imposed  after  conviction,  is  insignificant 
compared  with  the  distinction  the  law  makes  between 
the  poor  man  in  the  lawful  pursuit  of  a  living  and 
the  rich  one  engaged  in  adding  to  an  already  swollen 
fortune.  The  contest  has  begun  for  the  control  of 
the  government  as  well  as  the  natural  resources  of 
this  country,  between  organized  wealth  and  the  in- 
dividual demanding  the  right  to  live  as  a  free  man. 
Almost  forty  years  ago,  a  great  judge,  in  a  memorable 
address,^^  thus  foreshadowed  the  present  crisis: 

"  There  is  looming  up  a  new  and  dark  power,  I  cannot 
dwell  upon  the  signs  and  shocking  omens  of  its  advent. 
The  accumulation  of  individual  wealth  seems  to  be 
greater  than  it  ever  has  been  since  the  downfall  of  the 
Koman  Empire.  And  the  enterprises  of  the  country  are 
aggregating  vast  corporate  combinations  of  unexampled 

1*  Address  of  Edward  G.  Eyan,  Chief  Justice  of  the  Supreme 
Court  of  Wisconsin,  delivered  before  the  University  of  Wis- 
consin Law  School,  June,  1873. 


182         OUR  JUDICIAL  OLIGARCHY 

capital,  boldly  marching,  not  for  economic  conquests 
only,  but  for  political  power.  We  see  their  colors,  we 
hear  their  trumpets,  we  distinguish  the  sound  of  prepa- 
ration in  their  camps.  For  the  first  time  really  in  our 
politics,  money  is  taking  the  field  as  an  organized  power. 
It  is  unscrupulous,  arrogant,  and  overbearing.  Already, 
here  at  home,  one  great  corporation  has  trifled  with  the 
sovereign  power  and  insulted  the  State.  There  is  great 
fear  that  it  and  its  great  rival  have  confederated  to 
make  partition  of  the  State  and  share  it  as  spoils. 
Wealth  has  its  rights.  Industrious  wealth  has  its  hon- 
ors. These  it  is  the  duty  of  the  law  to  assert  and  pro- 
tect, though  wealth  has  great  power  of  self-protection 
and  influence  beyond  the  limits  of  integrity.  But 
money  as  a  political  influence  is  essentially  corrupt;  it 
is  one  of  the  most  dangerous  to  free  institutions;  ty 
far  the  most  dangerous  to  the  free  and  just  administra- 
tion of  the  law.  It  is  entitled  to  fear,  if  not  to  respect : 
the  question  will  arise,  and  arise  in  your  day,  though 
perhaps  not  fully  in  mine :  Which  shall  rule  —  wealth 
or  men;  which  shall  lead  —  money  or  intellect;  who 
shall  fill  public  stations  —  educated  and  patriotic  free 
men,  or  the  feudal  serfs  of  corporate  capital  ?  " 

No  one  doubts  that  the  struggle  between  wealth 
and  men  which  Judge  Ryan  foresaw  and  eloquently 
predicted  is  upon  us.  The  Anti-Trust  law,  the  laws 
regulating  public  service  corporations,  and  shorten- 
ing the  hours  of  labor,  workmen's  compensation  laws 
and  many  similar  measures,  together  with  the  move- 
ment for  the  conservation  of  our  natural  resources, 


DANGERS  OF  POPULAR  DISTRUST     183 

and  the  attempts  to  break  down  our  tariff  wall,  and 
the  measures  looking  to  the  more  direct  control  of  the 
government  by  the  people,  such  as  direct  primaries, 
the  initiative,  .  referendum  and.  recall, —  all  these 
merely  represent  the  efforts  of  the  masses  to  break 
the  grip  which  organized  wealth  has  upon  our  gov- 
ernment, and  upon  the  natural  resources  of  the  coun- 
try. They  represent  in  part  the  beginning  of  the 
movement  to  free  men  from  the  dominion  of  corpo- 
rate wealth  and  power.  Where  this  conflict  will  lead 
us  no  man  knows,  but  the  courts  seem  already  to 
have  taken  their  position  in  it. 

The  decisions  which  I  have  herein  reviewed  con- 
stitute the  reply  which  the  courts  have  made  and 
are  making  to  this  progressive  movement.  Unmind- 
ful of  their  experience  in  the  past,  they  are  again 
inviting  a  contest,  the  consequences  of  which  must 
certainly  be  disastrous  to  them  and  possibly  to  the 
country  as  well.  If  these  suggestions  seem  unduly 
pessimistic,  I  invite  your  attention  to  the  language 
of  one  of  the  greatest  jurists  this  country  ever 
produced,  whose  opinions  as  Justice  of  the  Missouri 
Court  of  Appeals  are  read  and  quoted  wherever  the 
common  law  prevails,  and  whose  legal  text-books  are 
authority  in  every  English-speaking  Court  in  the 
world.  I  refer  to  Judge  Seymour  D.  Thompson. 
In  his  address  to  the  State  Bar  Association  of  Texas, 
in  1896,  Judge  Thompson  reviewed  the  cases  de- 
cided up  to  that  time,  showing  the  tendency  of  the 


184         OUR  JUDICIAL  OLIGARCHY 

courts  to  override  and  control  the  other  departments 
of  government  and  to  protect  property  rights  at  the 
expense  of  human  rights,  and  concluded  his  address 
as  follows :  ^^ 

"  The  dangerous  tendencies  and  extravagant  preten- 
sions of  the  courts  which  I  have  pointed  out  ought  not 
to  be  minimized,  but  ought  to  be  resisted.  Their  re- 
sistance ought  not  to  take  place  as  advised  by  Jefferson, 
by  'meeting  the  invaders  foot  to  foot,'  but  it  ought  to 
take  place  under  the  wise  and  moderate  guidance  of 
the  legal  profession,  but  the  danger  is  that  the  people 
do  not  always  so  act.  In  popular  governments,  evils 
are  often  borne  with  stolid  patience  until  a  culminating 
point  is  reached,  when  the  people  burst  into  sudden 
frenzy  and  redress  their  grievances  by  violent  and  ex- 
treme measures,  and  even  tear  down  the  fabric  of 
government  itself.  There  is  danger,  real  danger,  that 
the  people  will  see  at  one  sweeping  glance  that  all  the 
powers  of  their  government,  Federal  and  State,  lie  at 
the  feet  of  us  lawyers,  that  is  to  say,  at  the  feet  of  a 
judicial  oligarchy;  that  those  powers  are  being  steadily 
exercised  in  behalf  of  the  wealthy  and  powerful  classes, 
and  to  the  prejudice  of  the  scattered  and  segregated 
people;  that  the  power  thus  seized  includes  the  power 
of  amending  the  Constitution;  the  power  of  superin- 
tending the  action,  not  merely  of  Congress,  but  also  of 
the  State  Legislatures ;  the  power  of  degrading  the  pow- 
ers of  the  two  houses  of  Congress,  in  making  those  in- 
vestigations which  they  may   deem   accessory   to  wise 

15  American  Law  Review,  Vol.  XXX,  pp.  697-9. 


DA^^GEES  OF  POPULAR  DISTRUST     185 

legislation,  to  the  powers  which  an  English  court  has 
ascribed  to  British  Colonial  legislatures;  the  power  of 
superintending  the  judiciary  of  the  States,  of  annulling 
their  judgments  and  commanding  them  what  judgments 
to  render;  the  power  of  denying  to  Congress  to  raise 
revenue  by  a  method  employed  by  all  governments;  mak- 
ing the  fundamental  sovereign  powers  of  government, 
such  as  the  power  of  taxation,  the  subject  of  barter  be- 
tween corrupt  legislatures,  and  private  adventurers; 
holding  that  a  venal  legislature,  temporarily  vested  with 
power,  may  corruptly  bargain  away  those  essential  at- 
tributes of  sovereignty  and  for  all  time ;  that  corporate 
franchises  bought  from  corrupt  legislatures  are  sancti- 
fied and  placed  forever  beyond  recall  by  the  people ;  that 
great  trusts  and  combinations  may  place  their  yokes  upon 
the  necks  of  the  people  of  the  United  States,  who  must 
groan  forever  under  the  weight,  without  remedy  and 
without  hope ;  that  trial  by  jury  and  the  ordinary  crim- 
inal justice  of  the  States,  which  ought  to  be  kept  near 
the  people,  are  to  be  set  aside,  and  Federal  court  in- 
junctions substituted  therefor;  that  those  injunctions 
extend  to  preventing  laboring  men  quitting  their  em- 
ployment, although  they  are  liable  to  be  discharged  by 
their  employers  at  any  time,  thus  creating  and  per- 
petuating a  state  of  slavery.  There  is  danger  that  the 
people  will  see  these  things  all  at  once;  see  their  en- 
robed judges  doing  their  thinking  on  the  side  of  the 
rich  and  powerful;  see  them  look  with  solemn  cynicism 
upon  the  sufferings  of  the  masses,  nor  heed  the  earth- 
quake when  it  begins  to  rock  beneath  their  feet;  see 
them  present  a  spectacle  not  unlike  that  of  Nero  fiddling 


186         OUR  JUDICIAL  OLIGARCHY 

while  Rome  burns.  There  is  danger  that  the  people  will 
see  all  this  at  one  sudden  glance,  and  that  the  furies 
will  then  break  loose  and  that  all  hell  will  ride  on  their 
wings." 

At  the  time  this  language  was  used  the  employers* 
liability  law,  the  workmen's  compensation  law,  and 
the  laws  regulating  employment  in  various  industries 
had  not  been  nullified  by  the  courts ;  neither  had  the 
most  objectionable  decisions  been  rendered  against 
organized  labor,  and  the  courts  had  barely  entered 
upon  the  work  of  destroying  State  statutes  regulating 
great  corporations.  When  one  considers  how  the 
work  of  building  up  a  Judicial  Oligarchy  has  gone 
forward  since  Judge  Thompson  used  the  language 
quoted  above,  it  must  be  admitted  that  we  have 
steadily  advanced  toward  the  realization  of  the  dan- 
gers he  pointed  out. 


CHAPTER  yil 

SUGGESTIONS  REGARDING  REFORMS  IN  THE   JUDICIARY 

T  TOW  not  to  reform  the  judiciary  is  quite  as  im- 
-*•  -*■  portant  as  how  to  reform  it.  Even  judges 
and  lawyers  freely  admit  the  existence  of  abuses  in 
our  judicial  system  and  the  necessity  of  correcting 
them;  but  the  remedy  they  generally  suggest  will 
aggravate  the  real  evils,  not  correct  them.  The  late 
Mr.  Justice  Brewer,  for  many  years  a  member  of  the 
Supreme  Court  of  the  United  States,  and  one  of  the 
most  influential  members  of  that  body,  in  a  state- 
ment published  in  the  press  of  New  York  City, 
February  1,  1910,  after  referring  to  the  popular 
dissatisfaction  with  the  courts,  had  this  to  say: 

"  I  advocate  that  the  States  enact  laws  that  will  per- 
mit of  but  one  appeal  after  the  trial  judge.  I  have 
reached  the  conclusion  that  no  judgment  should  be 
reversed  upon  a  mere  error  in  the  admission  of  evidence, 
error  in  the  ruling  of  the  court,  or  in  the  trial  judge's 
charge,  unless  it  be  clearly  shown  that  such  error  worked 
a  serious  injustice  upon  the  defendant.  I  maintain 
that  laws  should  be  passed  which  would  give  judges  the 
necessary  latitude  in  such  matters  to  enable  them  to 
render  quick  justice.     The  laws  of  many  of  the  Western 

187 


188         OUR  JUDICIAL  OLIGARCHY 

States  are  such  that  a  judge  is  but  little  more  than  a 
moderator." 

President  Taft,  in  his  message  to  the  Sixty-first 
Congress,  as  we  have  seen,  referred  to  what  he  called 
the  "  deplorable  delay  in  the  administration  of  civil 
and  criminal  law,"  which  matters,  he  said,  were  re- 
ceiving the  attention  of  the  Bar  Associations  of  tho 
country  and  the  careful  consideration  of  judges  as 
well.  His  general  recommendations  were  along  the 
lines  suggested  by  Mr.  Justice  Brewer,  above  quoted, 
and  were  the  same  in  substance  as  the  recommenda- 
tions of  the  various  Bar  Associations  of  the  country. 

The  recommendations  of  the  Association  of  the 
Bar  of  the  City  of  New  York  ^  are  fairly  typical  of 
the  recommendations  emanating  from  courts  and 
judges  and  Bar  Associations  generally  on  this  subject. 
These  recommendations  (except  as  to  some  minor 
matters  of  practice)  group  themselves  under  three 
heads : 

First :  Those  providing  that  the  trial  justice  shall 
have  greater  power  than  heretofore  in  directing  the 
jury  to  return  a  verdict  in  favor  of  one  party  or  the 
"other ; 

Second'.  Where,  at  the  conclusion  of  the  plain- 
tiff's case,  the  Court  is  of  the  opinion  plaintiff  has 
not  made  out  a  cause  of  action  and  dismisses  the 
complaint,,  this  shall  finally  dispose  of  the  case  and 

1  See  "Neijo  York  Law  Journal,  Jan.  6,  1910. 


SUGGESTIONS  FOR  EEFOEMS       189 

prevent  the  plaintiff  bringing  another  action  for  the 
same  cause ; 

Third:  Where  the  judges  now  exercise  the  power 
to  set  aside  a  verdict  if  they  are  dissatisfied  with  it, 
but  under  the  present  practice  must  grant  a  new 
trial,  they  shall  have  power  to  direct  what  verdict 
shall  be  rendered. 

The  recommendations  originating  with  judges, 
and  lawyers'  associations  in  the  main,  therefore,  pro- 
l^ose  to  increase  the  power  of  the  judge,  decrease  the 
power  of  the  jury  and  limit  the  right  to  appeal. 
These  recommendations  assume  that  the  popular  dis- 
satisfaction with  our  courts  involves  only  a  matter 
of  procedure,  when,  the  fact  is,  it  goes  to  the  sub- 
stance of  judicial  action. 

The  public  complains  less  that  decisions  are  a  long 
time  in  coming  than  it  does  that  they  are  wrong 
when  they  do  come.  I  do  not  suppose  that  the  Bar 
Associations  and  the  judges  by  focusing  attention 
upon  the  subjects  of  delay,  expense,  and  reversals  for 
technical  causes,  incident  to  our  present  judicial  pro- 
cedure, intend  to  divert  public  attention  from  the 
real  abuses,  although  there  may  be  some  ungenerous 
enough  to  suggest  that  this  is  the  explanation  of  the 
recommendations  for  judicial  reform  noticed  above. 
It  is  easy  to  complain  of  the  delay  and  expense  of 
litigation;  these  are  immediate  evils  and  it  is  both 
popular  and  safe  to  rail  against  them.  It  would  he 
better  if  we  frankly  admitted  that  great  expense  and 


190         OUE  JUDICIAL  OLIGARCHY 

considerable  delay  are  inseparable  from  any  litiga- 
tion and  that  the  wise  thing  for  the  prospective 
litigant  to  do  is  to  settle  his  difficulties  out  of  court 
without  the  aid  of  either  judges  or  lawyers.  It 
would,  indeed,  be  strange  if  courts  saw  anything 
but  good  in  an  enlargement  of  their  powers  and  law- 
yers are  notoriously  cowards  where  criticism  of  the 
courts  is  involved. 

The  real  basis  of  complaint  is  not  that  judges 
haven't  enough  power,  but  that  they  have  too  much ; 
it  is  not  so  much  that  litigation  is  costly  as  that  its 
results  are  unsatisfactory;  it  is  not  that  justice  is 
delayed,  but  that  it  is  denied.  The  purpose  of  the 
courts  should  not  be  so  much  to  render  speedy  de- 
cisions as  to  give  just  judgments. 

Underlying  the  whole  argument  of  those  advocates 
of  judicial  reform,  whose  contentions  were  ably 
stated  by  Mr.  Justice  Brewer  in  the  quotation  above 
given,  is  the  assumption  that  when  a  decision  is 
rendered,  it  is  right.  If  this  assumption  were  true 
the  argument  would  be  good  and  any  change  which 
would  increase  arbitrarily  the  power  of  the  judges 
and  hasten  a  judgment  would  be  desirable.  But  if, 
on  the  other  hand,  the  decisions  of  our  courts  where 
real  and  substantial  contests  occur  are  about  as  apt 
to  be  wrong  as  right,  no  very  grave  injury  is  likely 
to  result  if  a  decision  is  somewhat  delayed  and  if 
such  delay  can  guarantee  a  more  nearly  just  result, 
it  is  desirable  rather  than  otherwise. 


SUGGESTIONS  FOR  REFORMS       191 

In  order  to  determine  the  proportion  of  onr  de- 
cisions likely  to  be  wrong,  according  to  the  standards 
of  the  courts,  even  under  our  present  so-called  slow 
methods,  which  permit  some  time  for  consideration 
and  deliberation,  I  have  prepared  certain  tables  of 
cases  from  various  courts.  The  following  table 
shows  the  fate  of  the  cases  reported  in  three  volumes 
of  the  New  York  Appellate  Division  Reports.  These 
reports  w^ere  selected  at  random,  covering  different 
periods,  but  all  sufficiently  recent  to  show  the  condi- 
tions at  the  present  time. 

The  Appellate  Division  of  the  New  York  Supreme 
Court  is,  it  should  be  understood,  an  appellate  court 
intermediate  between  the  trial  court  and  the  Court 
of  Appeals : 

Total  number  of  cases  appealed: 

Vol.  100  A.  D 257 

Vol.  105  A.  D 344 

Vol.  110  A.  D 431     1032 

Total  affirmances: 

Vol.  100  A.  D 186 

Vol.  105  A.  D 234 

Vol.  110  A.  D 275     695 

Total  reversals: 

Vol.  100  A.  D 71 

Vol.  105  A.  D 110 

Vol.  110  A.  D 156     337     1032 


192         OUE  JUDICIAL  OLIGARCHY 

Affirmances :  67  per  cent. 
Reversals:  33  per  cent. 

Total  number  of  cases  appealed  to  Court  of 
Appeals: 

Vol.  100  A.  D 58 

Vol.  105  A.  D 6Q 

Vol.  110  A.  D 97    221 


Of  the  cases  appealed  to  the  Court  of  Appeals 
substantially  20  per  cent,  were  reversed  and  80  per 
cent,  were  affirmed. 

Practically  none  of  the  above  cases  were  reversed 
on  technical  grounds,  as  New  York  has  a  very  liberal 
statute  requiring  the  courts  to  disregard  technicalities 
not  affecting  the  merits. 

In  1903  a  Commission  was  appointed  by  the  Gov- 
ernor of  the  State  of  ^N^ew  York  to  inquire  into  the 
delays  and  expenses  in  the  administration  of  justice 
in  certain  counties  of  the  State  of  New  York.  This 
Com^iission  made  a  most  exhaustive  report  in  1904 
and  among  other  things  summarized  the  results  of 
the  appeals  to  the  Appellate  Division  for  the  years 
from  1896  to  1902  in  the  following  table:  ^ 

2  See  New  York  Report  of  Commission  on  Law's  Delaya 
(1904),  p.  25. 


suggestio:n"s  for  eeforms     193 


Affirmed 

Reversed 

rf 

«M 

i 

(4 
0 

a 

M 

9 

a> 
•9 

M 

0 

■3 
1 

a 

CD 
0 

0 

^1 

SI 

1896 

934 

700 

1634 

441 

376 

817 

2451 

33.3 

1897 

874 

771 

1645 

455 

444 

899 

2544 

35.3 

1898 

978 

762 

1740 

519 

454 

973 

2713 

35.7 

1899 

1065 

859 

1924 

487 

412 

899 

2823 

31.8 

1900 

1104 

891 

1995 

472 

395 

867 

2862 

30.2 

1901 

1142 

919 

2061 

467 

378 

845 

2906 

29. 

1902 

1152 

934 

2086 

534 

521 

1055 

3141 

33.5 

Total 

7249 

5856 

13085 

3375 

2980 

6355 

19440 

32.6 

It  will  be  observed  that  the  last  preceding  table 
does  not  give  the  cases  appealed  from  the  Appellate 
Division  to  the  Court  of  Appeals,  but  there  is  no 
reason  to  doubt  that  there  would  be  at  least  as  large 
a  percentage  of  reversals  as  found  in  the  three 
volumes  of  the  reports  referred  to  and  tabulated  first 
above. 

I  caused  to  be  made  also  an  examination  of  three 
volumes  of  the  Wisconsin  Supreme  Court  Reports, 
50,  Y5,  and  110  Wis.,  selecting  them  at  random,  to 
determine  the  number  of  cases  therein  which  were 
affirmed  and  the  number  which  were  reversed.  The 
following  table  shows  the  result  of  that  examination : 


Total  number  of  cases  appealed  in  the  three 
volumes  selected:  284 

50  Wis.  Affirmances 59 

Reversals 44    103 


194         OUR  JUDICIAL  OLIGARCHY 

75  Wis.   Affirmances 67 

Reversals 36     103 

110  Wis,  Affirmances 48 

Eeversals 30       78       284 

Total  afftrmcmces: 

50  Wis 59 

75  Wis 67 

110  Wis 48     174 

Total  reversals: 

50  Wis 44 

75  Wis 36 

110  Wis 30     110      284 

Affirmances:  61  per  cent. 
Reversals:  39  per  cent. 
Appeals  from  verdict  of  jury: 

Affirmed  Eeversed  Total 
50  Wis.               25             14  39 

75  Wis.  28  13  41 

110  Wis.  18  16  34     114 

Appeals  from  decision  of  court: 

Affirmed     Eeversed  Total 
50  "^is.               34            30  64 

75  Wis.  39  23  62 

110  Wis.  30  14  44     170      284 

The  judges   of  Wisconsin  are   at  least  equal  in 
ability  to  those  of  any  State  in  the  Union,  so  that  the 


SUGGESTIONS  FOR  REFORMS       195 

above  figures  doubtless  are  fairly  representative  of 
the  decisions  in  other  States. 

The  above  figures  seem  to  show  that  more  errors 
are  committed  by  the  trial  court  in  matters  decided 
without  a  jury  than  in  those  where  a  jury  passes 
upon  the  facts. 

In  none  of  these  tables  is  any  account  taken  of  the 
cases  carried  from  the  highest  court  of  a  State  to 
the  Supreme  Court  of  the  United  States  and  there 
reversed.  When  it  is  considered  that  in  most  cases 
where  there  is  a  real  contest,  at  least  one  appeal  is 
taken,  and  that  the  questions  which  the  appellate 
court  can  pass  upon  even  under  our  present  pro- 
cedure are  much  restricted,  and  confined  largely  to 
questions  of  law,  it  is  certain  that  a  shockingly  large 
number  of  cases  are  decided  incorrectly  even  when 
those  decisions  are  measured  by  the  crude  standards 
of  right  and  wrong  which  the  present  rules  of  law 
prescribe. 

Every  wrong  decision  means  that  injustice  and 
not  justice  was  meted  out  by  the  court  to  the  parties 
who  came  before  it,  that  wrong  and  not  right  tri- 
umphed, that  property  was  taken  from  one  person 
and  wrongfully  transferred  to  another  w^ho  had  no 
claim  upon  it,  or  that  the  important  personal  rights 
of  life,  liberty  and  character  were  lost. 

Limiting  the  right  to  appeal  may  conceal  these 
wTongs,  but  it  will  not  correct  them.  Greater  haste 
in  judicial  action  will  hardly  contribute  to  a  wiser 


196         OUR  JUDICIAL  OLIGAKCHY 

or  a  more  just  result.  More  arbitrary  power  vested 
in  a  judge  may  decrease  the  number  of  cases  in  which 
he  can  be  reversed,  but  it  will  not  make  his  wrong 
decisions  right.  It  will  only  increase  the  number 
of  wrong  decisions  and  take  away  the  possibility  of 
correcting  them. 

By  the  law  of  averages,  I  suppose  if  litigants  met 
together  outside  of  court  and  settled  their  differences 
by  drawing  lots,  the  right  would  triumph  half  the 
time.  Now  when  the  result  of  judicial  action,  even 
with  all  the  present  opportunities  for  argument  and 
consideration,  fails  to  show  a  very  much  better  aver- 
age, it  ought  to  be  clear  that  hastening  judicial  pro- 
ceedings will  not  give  the  desired  results.  The  above 
considerations  also  ought  to  effectually  dispose  of  the 
idea  that  our  courts  are  other  than  very  human  in- 
stitutions presided  over  by  men  with  the  faults  and 
virtues,  and  prejudices  and  limitations,  common  to 
their  fellows. 

The  first  step  toward  bringing  about  better  re- 
lations between  the  courts  and  the  people  is  to  subject 
the  official  acts  of  the  judges  to  the  same  measure  of 
criticism  that  is  visited  upon  the  acts  of  all  other 
public  officials. 

If  it  is  true,  as  charged,  that  our  judges  have 
stepped  outside  the  judicial  office  and  virtually  be- 
come legislators,  thereby  usurping  the  functions  of 
the  law-making  branch  of  the  government,  no  lan- 
guage is  strong  enough  to  condemn  such  action  and 


SUGGESTION'S  FOK  REFORMS       197 

no  proceeding  too  drastic,  if  it  is  necesssary,  to  cor- 
rect the  evil.  No  one  will  defend  such  action  on  the 
part  of  the  judges  or  contend  that  a  free  government 
is  posssible  where  judges  exercise  such  power. 

If,  on  the  other  hand,  the  charge  is  not  true,  then 
it  is  of  the  highest  importance  that  the  public  be  in- 
formed of  the  truth  and  that  this  ground  of  dissatis- 
faction with  the  judiciary  be  removed. 

If  it  is  true,  as  charged,  that  our  judges  generally 
are  out  of  sympathy  with  the  new  and  progressive 
views  and  policies  of  the  present  day,  and  are  using 
the  great  powers  of  the  judicial  office  to  block  and 
thwart  the  public  will  in  these  respects,  and  to  pre- 
serve and  extend  the  ancient  but  unjust  privileges 
of  wealth,  contrary  to  the  demands  of  a  modern  and 
enlightened  public  sentiment,  then  there  is  both  just 
and  serious  ground  of  complaint  against  the  courts. 

But  if  this  charge  is  untrue,  the  public  interest 
requires  that  it  shall  be  refuted  at  once. 

Now  this  means  discussion  and  freedom  for  dis- 
cussion. It  means  that  judicial  decisions  shall  be 
subjected  to  the  same  public  scrutiny  that  is  applied 
to  the  votes  and  speeches  of  members  of  Congress  or 
of  the  legislatures.  It  means  that  judges  shall  be 
put  on  a  par  with  all  others  who  hold  commissions 
from  the  people  to  serve  the  public.  The  worst 
enemies  of  the  courts  and  of  the  country  are  those 
who  seek  to  prevent  free  criticism  of  judicial  officers. 
To  suggest  a  revolution  as  a  means  of  avoiding  an 


198         OUR  JUDICIAL  OLIGAECHY 

unpopular  law  passed  by  Congress  and  approved  by 
the  President  would  only  provoke  a  smile,  but  Presi- 
dent Hadley  and  Judge  Thompson,  and  others  like 
them  point  out  as  a  grave  danger  that  a  revolution 
may  be  provoked  by  the  unpopular  rules  of  law  laid 
down  by  the  courts.  Subject  judges  to  the  same 
measure  of  criticism  and  popular  control  that  applies 
to  the  other  officers  mentioned  and  the  difference  in 
the  public's  attitude  towards  the  two  classes  of  of- 
ficials will  disappear.  Respect  for  the  courts  and 
obedience  to  their  decrees  must  rest  upon  some  other 
basis  than  fear  of  a  contempt  proceeding  or  venera- 
tion for  judicial  mystery.  The  judge  who  mistakes 
damage  to  his  vanity  for  an  injury  to  the  public 
proves  his  unfitness  for  judicial  office. 

Any  legislation  attempting  to  reform  the  judiciary 
which  is  not  preceded  by  thorough  discussion  will  at 
the  best  be  ineffective  and  probably  imwise  and  it  is 
not  impossible  that  a  thorough  discussion  of  the  ju- 
dicial abuses  of  which  the  public  complains  will  ren- 
der drastic  legislation  unnecessary. 

It  must  be  admitted,  however,  that  judges  at  the 
present  time  are  far  too  prone  to  secure  themselves 
against  unfavorable  criticism  by  punishing  as  "  con- 
tempt of  court "  wholesome  and  necessary  comment 
and  discussion  of  their  official  acts.  Contempt  of 
court  has  been  not  inaptly  termed  a  "  legal  thumb- 
screw." ^     It  is  derived  from  the  more  ancient  of- 

3 Oswald,  Contevypt  of  Court  (1911),  p.  5. 


SUGGESTIONS  FOR  REFORMS   199 

fense  of  contempt  of  king.  As  the  king  came  to 
delegate  some  of  his  authority  to  his  judges,  the 
power  to  punish  for  contempt  seems  to  have  been 
delegated  along  with  the  authority.  That  the  process 
of  contempt  is  used  to  violate  the  fundamental  guar- 
anties of  freedom  of  speech  and  of  the  press  is  freely 
charged,  and  it  certainly  is  subject  to  great  abuse. 

A  case  previously  cited  in  this  volume  presents  a 
remarkable  instance  of  the  use  of  contempt  proceed- 
ings to  punish  and  prevent  hostile  criticism  of  the 
official  conduct  of  a  judge.*  In  that  case  it  appears 
that  Lindlay  W.  Morris  was,  in  the  fall  of  1908,  a 
candidate  for  reelection  for  a  fourth  term  as  judge 
of  the  Ohio  Court  of  Common  Pleas  in  the  judi- 
cial district  of  which  Lucas  County  was  a  part.  The 
campaign  for  Judge  Morris'  reelection  was  largely 
made  upon  the  proposition  that  he  was  a  people's 
judge,  and  that  he  was  opposed  by  corporations  and 
trusts.^  Charles  A.  Thatcher,  a  lawyer  of  large 
practice  in  the  state  of  Ohio,  extensively  circulated 
literature  during  the  campaign,  claiming  to  prove 
from  court  records  that  the  very  contrary  of  the  as- 
sertions made  in  behalf  of  Judge  Morris  was  the 
truth.  Among  the  statements  that  Thatcher  circu- 
lated was  the  following: 

"  The  attorneys  who  try  the  suits  against  the  cor- 
porations are  against  Morris  to  a  man.     It  isn't  senti- 

*  In  re  Thatcher,  80  Ohio  St.  492 ;  id.,  83  Ohio  St.  246. 
5  Id.,  p.  633. 


200         OUR  JUDICIAL  OLIGARCHY 

mcnt  or  politics  with  them.     It  is  business.     They  never 
would  be  against  Morris  if  he  were  a  '  people's  judge.' " 

Concerning  the  circulation  of  this  statement  under 
the  circumstances  mentioned,  the  court  said :  ^ 

"Whether  he  (Thatcher)  wrote  these  words  or  not, 
he  made  himself  responsible  for  them  by  distributing 
these  circulars;  and  the  peculiar  methods  of  publishing 
them  and  the  time  at  which  it  was  done  made  them  all 
the  more  inflammatory  and  dangerous.  With  a  trum- 
peter and  an  automobile  and  the  crippled  Gravell,  he 
went  about  gathering  curious  crowds  and  giving  out 
harrowing  stories  of  corruption,  oppression  and  injus- 
tice, wrought  in  the  name  of  the  law.     .     .     . 

"  The  chief  stress  of  the  defense  has  been  upon  the 
claim  that  what  the  respondent  did,  and  he  denies  very 
little,  he  did  as  a  citizen  and  not  as  an  attorney;  and 
that  as  a  citizen  and  an  attorney  he  had  the  right,  and 
it  was  his  duty,  to  oppose  a  candidate  whom  he  believed 
unfit  for  office.  We  concede  that  it  is  the  duty  of  the 
bar  to  aid  the  public  in  the  selection  of  proper  persons 
for  the  bench;  but  that  duty  should  be  exercised  in 
subordination  to  another  duty,  which  is  thus  expressed 
in  the  code  of  ethics  adopted  by  the  American  Bar 
Association.  .  .  .  *  Whenever  there  is  proper  ground 
for  serious  complaint  of  a  judicial  officer,  it  is  the  right 
and  duty  of  the  lawyer  to  submit  his  grievances  to  the 
proper  authorities.  In  such  cases,  but  not  otherwise, 
such  charges  should  be  encouraged,  and  the  person  mak- 
ing them  should  be  protected.'     ...     If  the  judges 

« Id.,  p.  665. 


SUGGESTIONS  FOR  REFORMS       201 

who  were  attacked  in  these  circulars  were  believed  by 
the  respondent  to  be  guilty  as  he  charges  and  insinuates, 
it  was  his  privilege  and  duty  to  do  what  he  could  to 
have  them  impeached  so  that  they  might  be  deposed 
from  office,  when  found  guilty.  As  an  attorney,  or  a 
citizen,  he  had  the  right  to  criticize  the  judgments  and 
conduct  of  the  judges  in  a  decent  and  respectful  man- 
ner ;  but  no  man  has  a  right  at  any  time  to  degrade  and 
intimidate  a  public  officer  and  bring  his  office  into  con- 
tempt by  the  publication  of  libelous  matter  imputing 
to  him  impeachable  offenses,  and  the  fact  that  the  officer 
is  a  candidate  for  reelection  does  not  remove  the  ban." 

In  other  words,  if  a  judge  is  a  candidate  for  re- 
election and  has  been  guilty  of  offenses  for  which  he 
could  be  impeached,  or  is  believed  to  be  guilty  of  such 
offenses,  the  facts  relating  to  his  alleged  misconduct 
must  not  be  published,  and  the  only  remedy  is  by  im- 
peachment proceedings  to  remove  the  offending  judge 
from  office. 

The  Court  in  disbarring  Thatcher,  apparently  feel- 
ing that  the  contempt  charges  might  be  insufficient, 
based  its  judgment  in  part  upon  the  alleged  fact 
that  he  procured  suit  to  be  brought  upon  certain  notes 
which  had  been  paid  and  the  cause  of  action  thereon 
extinguished."^  The  suit  on  the  notes  which  Thatcher 
advised  to  be  brought  was  pending  at  the  time  the  dis- 
barment proceeding  was  heard  in  the  Supreme  Court.^ 
After  the  decision  of  the  Supreme  Court  disbarring 

7  Id.,  p.  667.  8  U.,  p.  644. 


202         OUR  JUDICIAL  OLIGARCHY 

Thatcher,  the  action  on  the  notes  was  tried  and  it  was 
judicially  determined  that  the  notes  had  not  been  paid 
and  that  the  cause  of  action  thereon  had  not  been  ex- 
tinguished.® 

The  Legislature  of  the  State  of  Ohio  promptly  took 
action  in  respect  to  the  disbarment  of  Thatcher  and 
passed  an  act  overturning  the  judgment  of  the  Su- 
preme Court  and  reinstating  Thatcher.  Concerning 
the  scene  in  the  legislature  when  the  bill  reinstating 
Thatcher  was  passed,  I  quote  from  one  of  the  leading 
newspapers  of  Columbus,  Ohio :  ^^ 

"  Applauding  a  caustic  criticism  of  the  State  Supreme 
Court,  the  house  of  representatives  Thursday  voted  to 
reinstate  Charles  A.  Thatcher,  Toledo  attorney,  who 
was  disbarred  by  the  Supreme  Court  for  alleged  unpro- 
fessional conduct  in  criticizing  Judge  Morris  of  the 
Common  Pleas  court  of  Lucas  County. 

"  The  vote  was  79  for  Thatcher  to  7  against.  Those 
voting  in  the  negative  were  Cowan,  Langdon,  Lewis, 
Pocock,  Eeid,  Riddle  and  Speigel.  Four  of  the  seven 
are  lawyers. 

"The  bill  had  already  passed  the  senate  and  is  now 
up  to  the  governor  for  approval. 

"  Immediately  following  the  passage  of  the  bill  by 
the  house  there  were  rumors  that  pressure  was  being 

8  My  informant  in  respect  to  this  statement  is  a  reputable 
attorney  of  Toledo,  Ohio,  familiar  with  this  litigation,  but 
whose  name  I  have  not  permission  to  use. 

io  Columbus  Citizen,  April  13,  1911. 


suggestio:ns  for  eeforms     203 

brought  to  bear  upon  the  chief  executive  to  veto  the 
bill. 

"  The  vote  on  the  bill  in  the  house  was  attended  by 
sensational  and  unprecedented  features,  in  which 
Speaker  Vining  was  forced  to  rap  the  house  to  order 
for  applauding  an  arraignment  of  the  Supreme  Court 
judges.  Eepresentative  Smith  of  Butler  County 
touched  off  the  fireworks  in  a  speech  urging  the  rein- 
statement of  Thatcher.  He  related  some  untold  history 
of  the  political  pressure  that  was  brought  to  bear  to 
defeat  the  bill. 

" '  A  messenger  from  the  Supreme  Court  of  Ohio 
called  upon  the  judiciary  committee,  of  which  I  am  a 
member,'  said  Smith,  *with  a  request  that  the  commit- 
tee come  over  to  the  Supreme  Court  to  discuss  senate 
bill  No.  70  and  this  Thatcher  bill.  We  told  the  mes- 
senger that  whenever  the  Supreme  Court  wished  to  call 
upon  the  committee  it  knew  where  our  committee  room 
was  an4  we  would  be  glad  to  give  them  the  same  hear- 
ing as  we  would  any  other  citizen.'  It  was  at  this  point 
that  house  members  broke  into  applause. 

"  Continuing,  Smith  said  the  action  of  the  Supreme 
Court  was  unprecedented.  He  followed  with :  '  The 
court  in  disbarring  Thatcher  sat  upon  its  own  case  and 
rendered  a  verdict.  Two  members  of  the  court.  Jus- 
tices Price  and  Shauck,  were  among  the  members  criti- 
cized by  Thatcher.  Has  it  come  to  pass  in  Ohio  when  a 
citizen  cannot  exercise  the  constitutional  right  of  free 
speech  ? '  asked  Smith,  warming  up  to  his  subject. 

"  He  pointed  out  that  courts  should  not  be  above  hon- 
est criticism. 


204         OUR  JUDTCTAL  OLIGAECHY 

"  The  Thatcher  bill  was  backed  principally  by  organ- 
ized labor  and  a  large  number  of  attorneys." 

It  may  be  of  interest  to  know  that  Judge  Morris 
was  defeated  and  that  the  bill  to  reinstate  Thatcher 
became  a  law  without  the  approval  of  the  Governor. 

Proceedings  on  the  part  of  judges  like  those  in 
the  Thatcher  case  do  more  to  breed  contempt  of  court 
than  all  other  causes  combined.  No  charge  against 
the  judges,  however  untrue,  could  have  so  damaged 
the  court  in.  the  public  estimation  or  so  impaired  its 
usefulness  as  the  court's  own  action  in  the  premises 
bad  done. 

If  the  courts  do  not  speedily  abandon  the  practice 
of  punishing,  under  the  guise  of  contempt  proceed- 
ings, those  who  have  merely  incurred  the  displeasure 
of  the  judges,  the  Congress  and  State  legislatures  are 
likely  to  take  the  whole  matter  in  hand  and  regulate 
the  subject  by  statute  and  see  to  it  that  there  shall  be 
the  same  right  to  discuss  the  acts  and  abilities  of 
judges  that  obtains  in  the  case  of  other  public  serv- 
ants. 

While  the  emphasis  in  the  present  argument  is 
placed  on  public  discussion,  agitation  and  education, 
as  a  remedy  for  the  popular  distrust  of  the  courts,  it 
by  no  means  follows  that  legislation  should  have  no 
part  in  the  programme.  Indeed,  proposed  laws  may 
be  the  best  means  of  focusing  public  attention  and 
crystallizing  the  discussion. 


SUGGESTIONS  FOR  REFORMS       205 

A  noticeable  example  of  this  was  furnished  during 
the  concluding  days  of  the  first  session  of  the  Sixty- 
second  Congress,  when  Congress  voted  to  admit 
Arizona  as  a  state  with  a  recall  provision  in  her  con- 
stitution which  applied  to  judges  as  well  as  to  other 
officers,  and  the  President  vetoed  the  measure  solely 
because  judges  were  not  exempted  from  the  recall 
provisions  of  the  constitution. 

The  President  in  his  veto  message  ^^  gathered  up 
aud  presented  in  the  best  possible  form  the  objections 
to  the  recall  of  judges,  but  it  is  noticeable  that  no 
mention  was  made  of  the  recall  as  applied  to  other 
officers  and  no  objection  urged  against  the  Arizona 
constitution  because  it  provided  for  the  initiative  and 
referendum  as  well  as  for  the  recall. 

ISTothing  could  bring  out  more  clearly  the  rapid 
gro^vth  in  public  favor  of  these  recent  and  radical 
measures  than  that  they  should  all  be  passed  over  in 
silence  except  the  recall  as  applied  to  judges.  The 
recall  provisions  of  the  Arizona  constitution  as 
adopted  by  the  people  of  that  Territory  and  approved 
by  Congress  are  given  in  the  note.^^ 

iiCong.  Rec,  Vol.  XLVII  (Aug.  15,  1911),  p.  4111.  The 
President's  message  was  also  published  in  the  press  of  the 
country  under  the  above  date. 

12  Art.  VIII.  Sec.  1.  Every  public  officer  in  the  State  of 
Arizona  holding  an  elective  office,  either  by  election  or  ap- 
pointment, is  subject  to  recall  from  such  office  by  the  qualified 
electors  of  the  electoral  district  from  which  candidates  are 
elected    to   such    office.     Such    electoral    district   may    include 


206         OUR  JUDICIAL  OLIGARCHY 

It  may  be  assumed  that  President  Taft  in  bis  veto 
message  presented  tbe  arguments  against  tbe  recall  of 
judges  in  its  best  and  most  conclusive  form  since  he 
bad  tbe  advantage  of  tbe  full  and  complete  debates 
on  tbe  question  wbicli  bad  just  previously  taken  place 

the  whole  state.  Such  number  of  said  electors  as  shall  equal 
25  per  cent,  of  the  numbers  of  votes  cast  at  the  last  preceding 
general  election  for  all  of  the  candidates  for  the  office  held 
by  such  officer  may  by  petition,  which  shall  be  known  as  a 
recall  petition,  demand  his  recall. 

Sec.  2.  Every  recall  petition  must  contain  a  general  state- 
ment, in  not  more  than  200  words,  of  the  grounds  of  such 
demand,  and  must  be  filed  in  the  office  in  which  petitions 
for  nominations  to  the  office  held  by  the  incumbent  are  re- 
quired to  be  filed. 

Sec.  3.  If  said  officer  shall  ofi'er  his  resignation,  it  shall  be 
accepted,  and  the  vacancy  shall  be  filled  as  may  be  provided  by 
law.  If  he  shall  not  resign  within  five  days  after  a  recall 
petition  is  filed,  a  special  election  shall  be  ordered  to  be  held, 
not  less  than  20  nor  more  than  30  days  after  such  order,  to 
determine  whether  such  officer  shall  be  recalled.  On  the  bal- 
lots at  said  election  shall  be  printed  the  reasons,  as  set  forth 
in  the  petition,  for  demanding  his  recall,  and,  in  not  more 
than  200  words,  the  officer's  justification  of  his  course  in 
office.  He  shall  continue  to  perform  the  duties  of  his  office 
until  the  result  of  said  election  shall  have  been  officially 
declared. 

Sec.  4.  Unless  lie  otherwise  requests,  in  writing,  his  name 
shall  be  placed  as  a  candidate  on  the  official  ballot  without 
nomination.  Other  candidates  for  the  office  may  be  nominated 
to  be  voted  for  at  said  election.  The  candidate  who  shall  re- 
ceive the  highest  number  of  votes  shall  be  declared  elected 
for  the  remainder  of  the  term.  Unless  the  incumbent  receive 
the  highest  number  of  votes,  he  shall  be  deemed  to  be  re- 
moved from  office  upon  qualification  of  his  successor. 


SUGGESTIONS  FOR  REFORMS       207 

in  the  United  States  Senate.  If  the  President  in  his 
message  has  presented  the  strongest  arguments  against 
the  judicial  recall  features  of  the  Arizona  constitu- 
tion, the  country  cannot  but  feel  relief  on  reading  the 
message,  to  discover  that  even  if  the  recall  will  not 
accomplish  mucli  good,  no  substantial  argument  has 
been  advanced  to  show  that  it  can  do  any  harm. 

The  argument  against  the  recall  of  judges  is  the 
same  as  that  against  the  recall  of  any  other  official 
and  is  all  embodied  in  two  propositions: 

First:  That  the  people  will  be  so  foolish  on  some 
occasions  as  to  recall  good  judges. 

Second:  That  judges  will  be  intimidated,  by  fear 
of  being  recalled,  into  rendering  improper  decisions. 

Tlie  first  part  of  the  argimient  is  merely  the  world- 
old  one  that  tke  masses  are  incapable  of  self-govern- 
ment. 

The  same  argument  which  the  President  urged 
against  this  latest  demand  of  democracy  was  made 
against  its  first  demand  in  this  country  more  than 
one  hundred  and  thirty  years  ago,  by  Alexander 
Hamilton.  The  words  used  by  the  President  and  by 
Hamilton  are  almost  identical  and  the  idea  is  the 
same.  Since  the  experience  of  more  than  a  century 
and  a  quarter  has  shown  that  Hamilton's  argument 
was  entirely  fallacious,  it  is  not  surprising  that  the 
same  argument,  even  wben  advanced  by  the  Presi- 
dent and  supported  by  the  names  of  distinguished 
Senators  creates  no  particular  alarm.     Writing  in  op- 


208         OUE  JUDICIAL  OLIGARCHY 

position  to  the  election  of  the  President  by  the  peo- 
ple and  in  support  of  his  election  by  the  plan  pro- 
vided in  the  Constitution,  of  an  Electoral  College, 
by  which  it  was  intended  to  remove  the  Executive  far 
from  the  popular  will,  Hamilton  said:  '^ 

"  It  was  equally  desirable  that  the  immediate  elec- 
tion (of  the  President)  should  be  made  by  men  most 
capable  of  analyzing  the  qualities  adapted  to  the  station, 
and  acting  under  circumstances  favorable  to  delibera- 
tion, and  to  a  judicious  consideration  of  all  the  reasons 
and  inducements  which  were  proper  to  govern  their 
choice.  A  small  number  of  persons,  selected  by  their 
fellow-citizens  from  the  general  mass,  will  be  most  likely 
to  possess  the  information  and  discernment  requisite 
to  such  complicated  investigations." 

Again,  referring  to  the  election  of  the  President, 
Hamilton  wrote :  ^* 

"The  republican  principle  demands  that  the  delib- 
erate sense  of  the  community  should  govern  the  con- 
duct of  those  to  whom  they  entrust  the  management  of 
their  affairs ;  but  it  does  not  require  an  unqualified  com- 
pliance to  every  sudden  breeze  of  passion  or  to  every 
transient  impulse  which  the  people  may  receive  from 
the  arts  of  men,  who  flatter  their  prejudices  to  betray 
their  interests." 

13  The  Federalist,  No.  LXVIII,  edited  by  Lodge,  p.  424. 

14  The  Federalist,  No.  LXXI,  p.  446. 


SUGGESTIONS  FOR  EEFORMS       209 

Referring  to  the  recall  provision  of  the  Arizona 
constitution,  President  Taft  on  the  15th  day  of  Au- 
gust, 1911,  wrote  this:  ^^ 

"  By  the  recall  it  is  proposed  to  enable  a  minority  of 
25  per  cent,  of  the  voters  of  the  district  or  state  for  no 
prescribed  cause  after  a  judge  has  been  in  office  six 
months  to  submit  the  question  of  his  retention  in  office 
to  the  electorate.  The  petitioning  minority  must  say 
on  the  ballot  what  they  can  against  him  in  200  words 
and  he  must  defend  as  best  he  can  in  the  same  space. 
.  .  .  Could  there  be  a  system  more  ingeniously  de- 
vised to  subject  judges  to  momentary  gusts  of  popular 
passion  than  this  ?  " 

The  striking  similarity  betvs^een  the  language  of  the 
President  and  of  Hamilton  is  suggestive  and  leaves 
no  room  to  doubt  the  identity  of  the  idea.  A  few 
years,  however,  after  Hamilton  declared  the  people 
incapable  of  directly  electing  a  President  because 
they  would  be  swayed  by  "  every  sudden  breeze  of 
passion,"  they,  in  spite  of  the  Constitution,  proceeded 
to  elect  the  President  directly  and  have  continued  to 
do  so  ever  since  and  no  man  with  any  pretension  to 
intelligence  would  now  suggest  a  return  to  the  method 
which  Hamilton  advocated. 

The  refutation  of  Hamilton's  argument  by  the  ex- 
perience of  more  than  a  century  is  also  a  refutation 

18  Cong.  Bee,  Vol.  XLVII,  p.  4112. 


210         OUR  JUDICIAL  OLIGARCHY 

of  the  President's  argument.  There  is  no  more  rea- 
son to  fear  that  "  momentary  gusts  of  popular  pas- 
sion "  will  sweep  good  men  out  of  judicial  office  than 
there  is  to  fear  that  a  "  sudden  breeze  of  passion  " 
will  sweep  bad  men  into  the  Executive  office. 

There  is  reason  for  more  than  a  suspicion  that 
Hamilton  when  he  advanced  this  argument  was  not 
quite  frank  and  that  he  did  not  believe  in  republican 
government  at  all.  What  he  wrote  in  the  Federalist 
was  of  course  intended  for  all  the  public.  What  he 
said  in  the  Constitutional  Convention  which  sat  with 
closed  doors  and  conducted  its  proceedings  with  the 
utmost  secrecy,  evidently  expressed  his  real  view. 
The  notes  of  the  Constitutional  Convention,  secretly 
taken  by  Madison  and  published  long  after  the  death 
of  every  one  connected  with  it,  reports  Hamilton  as 
follows :  ^^ 

"  In  his  private  opinion  he  had  no  scruple  in  declar- 
ing, supported  as  he  was  by  the  opinion  of  so  many  of 
the  wise  and  good,  that  the  British  government  was  the 
best  in  the  world,  and  that  he  doubted  much  whether 
anything  short  of  it  would  do  in  America.  He  hoped 
gentlemen  of  different  opinions  would  bear  with  him 
in  this  and  begged  them  to  recall  the  change  of  opinion 
on  this  subject  which  had  taken  place  and  was  still 
going  on." 

18  Journal  of  Constitutional  Convention,  by  Madison,  pp. 
181-2. 


SUGGESTIONS  FOR  REFORMS       211 

Again,  in  the  same  convention,  he  said: 

"To  the  proper  adjustment  of  it  (conflicting  inter- 
ests) the  British  owe  the  excellence  of  their  constitution. 
Their  House  of  Lords  is  a  most  noble  institution,  hav- 
ing nothing  to  hope  for  by  a  change,  and  a  sufficient 
interest  by  means  of  their  property,  in  being  faithful  to 
the  national  interest,  they  form  a  permanent  barrier 
against  every  pernicious  innovation,  whether  attempted 
on  the  part  of  the  Crown  or  the  Commons." 

As  is  well  known  also,  Hamilton  contended  that 
the  United  States  Senate  should  be  a  permanent  body 
and  that  the  President  should  hold  for  life.*^ 
Again :  ^^ 

"  He  acknowledged  himself  not  to  think  favorably  of 
republican  government;  but  addressed  his  remarks  to 
those  who  did  think  favorably  of  it  in  order  to  prevail 
on  them  to  tone  their  government  as  high  as  possible." 

Hamilton  also  held  other  rather  undemocratic 
views.  In  his  report  as  Secretary  of  the  Treasury  to 
the  House  of  Representatives,  December  5,  1791, 
concerning  manufactories,  he  said :  ^^ 

"  It  is  worthy  of  remark  that  in  general  women  and 
children  are  rendered  more  useful  and  the  latter  more 

17  Id.,  pp.  182,  183. 

18  Id.,  p.  244. 

19  Works  of  Alexander  Hamilton,  edited  by  Lodge,  p.  314. 


212         OUR  JUDICIAL  OLIGARCHY 

early  useful  by  manufacturing  establishments  than  they 
would  otherwise  be.  Of  the  number  of  persons  em- 
ployed in  the  cotton  manufactories  of  Great  Britain  it 
is  computed  that  four-sevenths  nearly  are  women  and 
children,  of  whom  the  greatest  proportion  are  children 
and  many  of  them  of  a  tender  age,  and  thus  it  appears 
to  be  one  of  the  attributes  of  the  manufactories  and 
one  of  no  small  consequence  to  give  occasion  to  the 
exertion  of  a  greater  quantity  of  industry  even  by  the 
same  number  of  persons  where  they  happen  to  prevail 
than  would  exist  if  there  was  no  such  establishment." 

That  Hamilton  could  not  have  been  ignorant  of 
the  horrible  conditions  under  which  women  and  child- 
ren were  enslaved  by  the  English  factory  system 
which  he  commended  is  shown  by  the  fact  that  in 
1784  public  attention  had  been  drawn  to  these  condi- 
tions by  the  report  of  a  Commission  of  Inquiry. ^^ 

While  it  may  be  that  Madison's  journal  reporting 
Hamilton's  real  views  expressed  as  he  supposed,  in 
secret,  placed  beside  what  he  wrote  in  the  Federalist 
for  the  public,  shows  him  to  have  been  something  of 
a  hypocrite,  it  makes  clear  his  reasons  for  declaiming 
against  the  danger  of  the  people's  being  swayed  by 
''  every  sudden  breeze  of  passion."  Why  the  same 
argument  should  be  made  at  the  present  time  by 
genuine  believers  in  popular  government  is  more  dif- 
ficult to  understand.  They  have  less  reason  for  mak- 
ing it  than  Hamilton  had,   since  the  patience  and 

20  Encyclopedia  Britannica,  Vol.  XVI,  p.  10. 


SUGGESTIONS  FOR  REFORMS       213 

moderation  with  which  the  people  have  conducted 
their  affairs  since  the  formation  of  this  government 
is  a  complete  answer  to  the  Hamiltonian  argu- 
ment. 

The  people  heard  their  Supreme  Court,  in  the  Dred 
Scott  case,  declare  negro  slavery  a  national  institu- 
tion, and  they  were  obliged  to  wash  that  decision  off 
the  records  of  the  government  with  the  best  blood  of 
the  nation,  and  yet  they  did  not  rend  the  court 

They  heard  the  same  court  in  the  Legal  Tender 
cases  deny  them  the  means  of  preserving  the  country 
from  bankruptcy  and  financial  ruin,  and  they  did  no 
violence  to  the  court,  but  merely  resorted  to  the 
subterfuge  of  packing  it  with  some  new  judges  who 
changed  the  decision. 

In  later  years  the  Supreme  Court  in  the  Income 
Tax  cases  denied  the  people  the  right,  which  every 
other  government  on  earth  possesses,  of  placing  the 
burden  of  taxation  upon  the  rich  instead  of  the  poor, 
but  the  people  have  obeyed  the  decision,  and  ever 
since  it  was  rendered  have  been  trying  with  almost 
Job-like  patience  to  amend  the  Constitution  so  as  to 
escape  from  the  unjust  judgment  of  the  court. 

Within  a  very  short  time  the  people  have  seen  the 
Supreme  Court  in  the  Standard  Oil  and  Tobacco 
Trust  cases  greatly  weaken  the  Anti-Trust  law,  to 
which  they  looked  for  relief  from  the  exactions  of 
monopoly,  and  while  they  are  seeking  means  to  re- 
store the  law  to  its  former  efficacy,  their  language  is 


214         OUR  JUDICIAL  OLIGARCHY 

more  temperate  than  that  used  by  the  minority  of  the 
Court  in  those  cases. 

These  are  only  a  few  instances  in  which  the  people 
have  remained  calm  in  the  face  of  provocation  which 
seemed  intended  to  test  their  capacity  for  self-re- 
straint. These  facts  may  support  the  argument  that 
the  judicial  recall  when  available  will  be  too  seldom 
used,  but  they  make  it  seem  truly  marvelous  that  any 
one  can  read  the  history  of  patience  and  forbearance 
on  the  part  of  the  masses  and  then  distrust  them  for 
fear  that  they  may  give  way  to  "  momentary  gusts 
of  popular  passion."  It  is  difficult  to  believe  that 
any  judge  who  was  conscious  of  good  motives  and  of 
rectitude  in  his  official  acts  would  have  the  slightest 
fear  of  ever  being  removed  from  office  by  a  people 
who  have  manifested  such  patience  with  their  public 
officers.  This  clearly  seems  to  have  been  the  view 
taken  by  a  majority  of  the  members  of  the  Congress, 
as  shown  by  their  speeches,  as  well  as  by  their 
votes.  ^^ 

The  other  half  of  the  argument  against  the  recall 
of  judges,  namely  that  the  possession  of  such  power 

21  Sen.  Owen,  Cong.  Eec,  Vol.  XLVII  (Aug.  4,  1911),  p. 
3687;  Sen.  Poindexter,  Cong.  Rec,  Vol.  XLVII  (Aug.  7,  1911), 
p.  3801;  Sen.  Bourne,  Cong.  Rec,  Vol.  XLVII  (Aug.  5,  1911), 
p.  3811;  Sen.  Clapp,  Cong.  Rec,  Vol.  XLVII  (Aug.  8,  1911),  p. 
3839. 

The  United  States  Senate  passed  the  resolution  admitting 
Arizona  with  the  judicial  recall  provision  in  the  Constitution 
by  a  vote  of  53  to  18  (Cong.  Rec,  Vol.  XLVII,  p.  3856). 


SUGGESTIONS  FOR  REFORMS       215 

by  the  people  will  intimidate  the  courts  into  making 
wrong  decisions,  has,  if  possible,  less  to  support  it 
than  that  already  considered,  and  is,  besides,  the 
severest  arraignment  ever  made  of  the  judiciary  of 
this  country.  If  it  is  true  that  judges  will  serve  the 
power  that  controls  the  tenure  of  their  office  to  the 
extent  of  rendering  wrong  decisions  when  that  power 
is  the  people,  is  it  not  true  that  they  will  be  equally 
subservient  to  any  other  power  which  controls  their 
official  life  ? 

It  is  common  knowledge  that  the  people  have  prac- 
tically nothing  to  do  with  the  appointment  of  a 
federal  judge  or  with  his  retention  in  office  after 
his  appointment.  Concerning  the  appointment  of 
federal  judges.  United  States  Senator  Robert  L. 
Owen,  in  the  speech  cited  above,  said  they  were: 

"nominated,  and  proposed,  and  urged,  and  ap- 
pointed through  the  influence  of  special  interests. 
Their  decisions  will  continue  to  reflect  their  honest 
previous  predilections  and  bias  by  virtue  of  which  they 
were  nominated." 

United  States  Senator  Moses  E.  Clapp,  in  his 
speech  cited  above,  said : 

"  We  cannot  be  blind  to  the  fact  that  in  spite  of  the 
average  high  purposes,  a  sinister  influence  seeks  to 
dominate  our  political  life,  securing  both  the  election 
and  appointment  of  officers,  judicial  and  otherwise,  fa- 
vorably inclined  to  its  interests." 


216         OUR  JUDICIAL  OLIGARCHY 

But  the  influence  which  controls  the  appointment 
of  the  federal  judge  does  not  stop  at  that  point.  In 
the  usual  course  of  events  there  has  been  a  steady 
progression  in  the  federal  judiciary  from  district 
judge  to  circuit  judge,  with  an  assignment  to  court 
of  appeals  work,  and  with  an  appointment  to  the  Su- 
preme bench  as  a  possible  goal.  If  a  judge  can  be 
swerved  from  a  straight  course  by  any  power  because 
it  controls  his  official  destiny,  the  Federal  judiciary 
system  was  admirably  designed  to  serve  the  interests 
of  the  wealthy  and  powerful  classes. 

While  the  argument  in  favor  of  the  recall  of  an 
elective  State  judge  may  not  be  as  strong  as  in  the 
case  of  federal  judges,  there  is  no  particular  argu- 
ment against  it,  and  certainly  none  that  does  not  ap- 
ply to  all  other  State  officers. 

It  must  always  be  remembered  that  only  a  small 
portion  of  the  work  of  a  judge  consists  in  settling 
the  rights  of  the  private  individuals  who  come  be- 
fore him  as  litigants.  As  titles  to  real  property  be- 
come more  and  more  settled  and  the  principles  of 
business  contracts  fixed,  this  litigation  becomes  less 
in  volume  and  in  importance. 

The  litigation  of  this  country  is  becoming  more 
and  more  quasi-political  in  character,  involving  ques- 
tions of  governmental  policy  concerning  which  the 
people  have  the  same  right  to  be  heard  that  they  have 
when  the  Congress  passes  upon  the  same  or  similar 


SUGGESTIONS  FOR  REFORMS       217 

measures.  That  the  people  will  make  mistakes  in 
attempting  to  secure  control  of  the  judiciary  through 
the  medium  of  the  recall  and  the  election  of  the 
federal  judges  is  to  be  expected.  But  every  advance 
in  popular  government  has  been  made  in  the  same 
■way  and  the  same  arguments  that  are  made  against 
this  movement  now,  have  been  made  against  every  ef- 
fort of  the  masses  to  acquire  some  share  in  govern- 
ment. No  judge  was  ever  defeated  for  reelection, 
and  none  will  ever  be  recalled  because  of  an  errone- 
ous decision  involving  only  the  private  rights  of  in- 
dividual litigants. 

In  1911  occurred  the  first,  and  up  to  the  present 
writing,  the  only  attempt  to  recall  a  judge.  The 
attempt  grew  out  of  the  trial  of  the  case  of  the  State 
v.  McClallen,  which  occurred  in  Rosenburg,  Oregon, 
in  May,  1911.  The  facts  are  sufficiently  set  forth 
in  the  recall  petition,  which  was  in  part  as  follows : 

"  We,  the  undersigned  citizens  and  legal  voters  of  the 
State  of  Oregon,  and  of  the  Second  Judicial  District 
(consisting  of  the  counties  of  Douglas,  Lane,  Coos, 
Curry,  Benton  and  Lincoln),  respectfully  demand  the 
recall  of  Circuit  Judge  John  S.  Coke  of  said  Second 
Judicial  District;  and  each  for  himself  says:  I  have 
personally  signed  the  petition ;  I  am  a  legal  voter  of  the 
State  of  Oregon  and  of  the  Second  Judicial  District 
thereof;  my  residence  and  post  office  are  correctly  writ- 
ten after  my  name." 


218         OUR  JUDICIAL  OLIGARCHY 

Then  followed  a  statement  of  the  reasons  for  the 
proposed  recall  wherein  the  Judge  was  charged  with 
unfairness  in  the  conduct  of  the  trial. 

Signatures  were  obtained  to  the  petition  in  the  vi- 
cinity where  the  crime  was  committed  and  the  trial 
occurred,  but  the  petition  met  with  little  popular 
favor  and  was  abandoned  because  the  vast  majority 
of  voters  refused  to  sign  it,  believing  that  the  Judge 
was  honest,  however  much  mistaken  he  may  have 
been. 

This  case  presented  every  feature  necessary  to  call 
forth  one  of  those  "  momentary  gusts  of  popular 
passion "  from  which  the  opponents  of  the  recall 
would  protect  our  judges ;  but  the  popular  passion 
was  not  present.  While  the  people  of  that  commu- 
nity were  strongly  in  favor  of  the  recall  as  applied 
to  judges,  they  simply  did  not  feel  that  a  situation 
had  arisen  which  made  the  use  of  the  recall  neces- 
sary.^^ 

The  recall  of  judges  is  to  be  carefully  distin- 
guished from  another  idea,  which  is  supported  by 
some  men  of  prominence,  and  which  has  come  to 
be  described  as  the  "  recall  of  judicial  decisions." 
The  former  may  be  applied  without  materially  de- 
parting from  our  constitutional  form  of  government ; 

22  For  full  account  of  the  effort  to  secure  signatures  to  the 
petition  to  recall  Judge  Coke,  see  article  by  Judson  King,  in 
La  Follette's  Weehly  Magazine  of  November  25,  1911. 


SUGGESTIONS  FOR  REFORMS       219 

the  latter  is  absolutely  destructive  of  the  constitu- 
tion. The  recall  of  Judges  merely  means  that  where 
a  Judge  has  shown,  from  any  cause,  that  he  is  not 
discharging  the  functions  of  the  judicial  office  in 
fundamental  and  important  matters,  as  the  people 
desire,  he  will  be  discharged  and  a  new  judge  pos- 
sessing the  necessary  technical  qualifications  selected 
in  his  place.  The  recall  of  judicial  decisions  means 
that  the  wholly  untrained  layman  shall  undertake 
to  do,  personally,  the  highly  specialized  and  tech- 
nical work  of  a  judge.  The  great  vice  in  this  idea, 
however,  is  that  it  w^ould  be  used  as  a  means  of 
amending  the  Constitution  by  a  majority  vote.  It 
would  soon  come  about  that  laws  would  be  passed, 
simply  for  the  purpose  of  having  them  declared  un- 
constitutional, and  then  by  a  popular  vote  overturn- 
ing the  decision  of  the  Court,  and  in  that  respect 
amend  the  Constitution.  The  Constitution,  there- 
fore, would  be  immediately  reduced  to  the  level  of 
a  statute,  since  any  portion  of  it  could  be  amended, 
or  repealed,  at  any  time  by  a  mere  majority  of  the 
popular  vote.  While  there  is  little  likelihood  of 
this  idea  finding  a  permanent  place  in  the  minds  of 
the  people,  that  any  one  should  be  found,  who  seri- 
ously advocates  this  idea,  is  significant  of  the  extent 
to  which  the  dissatisfaction  with  the  courts  has  gone, 
and  ought  to  show  the  necessity  of  reforming  the 
courts,  along  lines  less  revolutionary. 


220         OUB  JUDICIAL  OLIGARCHY 

In  1891  Judge  Seymour  D.  Thompson  had  this 
to  say  concerning  the  popular  election  of  federal 
judges:  ^^ 

"  If  the  proposition  to  make  the  federal  judiciary 
elective  instead  of  appointive  is  once  seriously  discussed 
before  the  people,  nothing  can  stay  the  growth  of  that 
sentiment  and  it  is  almost  certain  that  every  session  of 
the  federal  Supreme  Court  will  furnish  material  to 
stimulate  that  growth." 

But  whether  federal  judges  shall  be  elected  or  ap- 
pointed or  whether  all  judges  shall  be  subject  to  the 
recall,  are  merely  questions  of  method.  The  one  fact 
concerning  the  judiciary  which  is  now  coming  to  be 
generally  understood  is  this:  The  Judicial  Depart- 
ment of  the  government  is  the  only  one  which  has 
successfully  resisted  the  modern  movement  towards 
Democracy. 

The  Electoral  College  provided  by  the  Constitu- 
tion, by  which  the  selection  of  the  President  and 
Vice-President  was  intended  to  be  taken  out  of  the 
hands  of  the  people,  has  been  superseded  by  the  direct 
popular  election  of  those  officials.  The  constitu- 
tional plan  of  making  the  United  States  Senate  repre- 
sent the  property  interests  and  financial  forces  of 
the  country  by  giving  to  the  members  of  that  body 
long  terms  and  providing  for  their  election  by  the 
legislatures  of  the  several  States,  is  being  overthrown 

23  25  Am.  Law  Review,  p.  288. 


SUGGESTIONS  FOR  EEFORMS       221 

and  election  of  United  States  senators  by  a  direct 
vote  which  is  already  a  fact  in  many  States,  will  soon 
be  enforced  in  all.  Already  this  change  has  revo- 
lutionized the  character  of  the  United  States  Senate 
and  bids  fair  to  make  it  a  body  more  representative 
of  the  people  than  the  House  of  Representatives. 
The  judicial  branch  of  the  government  alone  has 
yielded  nothing  of  its  constitutional  powers  to  the 
popular  will,  but  on  the  contrary,  it  has  extended  its 
o^vn  power  far  beyond  what  even  the  framers  of  the 
Constitution  contemplated,  and  this  it  has  done  with- 
out any  substantial  basis  for  its  power. 

It  has  passed  almost  without  comment  that  by  a 
law  which  took  effect  January  1st,  1912,  every  Unit'^d 
States  Circuit  Court  was  abolished.  True,  the  pow- 
ers theretofore  exercised  by  those  courts,  were  trans- 
ferred in  the  main  to  the  United  States  District 
Courts,  but  the  power  to  abolish  the  Circuit  Courts 
was  nevertheless  exercised  by  Congress.  Every 
United  States  Circuit  Court,  below  the  Supreme 
Court,  was  created  by  Congress,  and  in  conse- 
quence can  be  abolished  by  it,  or  the  judges  thereof 
made  elective,  while  even  the  Supreme  Court  depends 
for  the  substance  of  its  power  upon  Congressional 
action.     The  Constitution  provides,  Sec.  1,  Art.  IHt 

"  The  judicial  power  shall  be  vested  in  one  Supreme 
Court  and  in  such  inferior  courts  as  the  Congress  may 
from  time  to  time  ordain  and  establish." 


222         OUR  JUDICIAL  OLIGARCHY 

The  number  of  members  of  which  tlie  Court  shall 
be  composed  is  wholly  a  matter  of  legislation,  and  so 
to  a  large  extent  are  the  more  important  powers 
which  the  Court  exercises.^  ^ 

Under  these  circumstances,  it  is  folly  for  the 
courts  to  engage  in  a  contest  with  the  legislative 
branch  of  the  Government.  The  recall  which  the 
people  would  seldom  or  never  exercise,  is  much  less 
of  a  menace  to  the  dignity  and  prestige  of  the  courts 
than  Congressional  action,  when  provoked  by  arbi- 
trary acts  of  the  judiciary.  For  example,  the  statute 
above  referred  to  which  codifies  the  laws  relating  to 
the  judiciary,  approved  March  3d,  1911,  and  which 
took  effect  January  1st,  1912,  in  Sec.  21  of  Chapter 
I  thereof  provides : 

"  Whenever  a  party  to  any  action  or  proceeding,  civil 
or  criminal,  shall  make  and  file  an  afi&davit  that  the 
judge  before  whom  the  action  or  proceeding  is  to  be 
tried  or  heard  has  a  personal  bias  or  prejudice,  either 
against  him  or  in  favor  of  any  opposite  party  to  the 
suit,  such  judge  shall  proceed  no  further  therein,  but 
another  judge  shall  be  designated  in  the  manner  pre- 
scribed in  the  section  last  preceding,  or  chosen  in  the 
manner  prescribed  in  section  twenty-three,  to  hear  such 
matter.  Every  such  affidavit  shall  state  the  facts  and 
the  reasons  for  the  belief  that  such  bias  or  prejudice  ex- 

24  Sec.  2,  Art.  Ill,  U.  S.  Constitution.  Barry  v.  Mercein,  5 
How.  103,  119;  In  re  McCardle,  7  Wall.  506,  513;  In  re  Vidal, 
179  U.  S.  126. 


SUGGESTIONS  FOR  REFORMS       223 

ists,  and  shall  be  filed  not  less  than  ten  days  before  the 
beginning  of  the  term  of  the  Court,  or  good  cause  shall 
be  shown  for  the  failure  to  file  it  within  such  time. 
No  party  shall  be  entitled  in  any  case  to  file  more  than 
one  such  affidavit;  and  no  such  affidavit  shall  be  filed 
unless  accompanied  by  a  certificate  of  counsel  of  record 
that  such  affidavit  and  application  are  made  in  good 
faith." 

Shortly  after  this  statute  went  into  effect,  an  affi- 
davit of  prejudice  was  offered  for  filing  in  the  case 
of  the  State  of  Delaware  v.  Glascow,  in  the  United 
States  District  Court  at  Wilmington,  Del.,  by  counsel 
in  behalf  of  the  defendant.  The  affidavit  of  preju- 
dice was  offered  after  the  defendant  had  been  con- 
victed, and  before  he  was  sentenced,  but  at  the  earli- 
est date  possible  under  the  law,  and  was  apparently 
designed  to  prevent  sentence  being  imposed  by  the 
Judge  who  tried  the  case.  The  United  States  Dis- 
trict Judge  held  that  the  statute  in  question  could 
not  apply  to  the  case  in  the  stage  which  it  had 
reached,  and  also  refused  to  permit  the  filing  of  the 
affidavit  at  all.  After  denouncing  defendant  and  de- 
fendant's counsel  for  presenting  the  affidavit,  the 
Judge  said: 

"And  what  accentuates  the  ingratitude  and  baseness 
of  such  an  assault  upon  the  judicial  reputation  of  one 
who,  whatever  his  failings  or  shortcomings,  has  always 
tried  to  be  fair  and  impartial  as  between  litigants  in 


224         OUR  JUDICIAL  OLIGAECHY 

the  administration  of  justice,  criminal  and  civil,  is  the 
fact  that  if  section  21  of  the  act  in  question  be  applica- 
ble to  this  case,  which  as  the  court  has  determined  it 
is  not,  the  judge  has  no  protection  whatever  against  a 
false  and  perjured  affidavit,  and  his  reputation  as  a  fair 
and  impartial  dispenser  of  justice  goes  for  nothing,  and 
is  absolutely  at  the  mercy  of  any  litigant  who,  either 
of  his  own  motion  or  at  the  instigation  of  unscrupulous 
counsel  charges  bias  or  prejudice  against  him.  The 
mouth  of  the  judge  is  sealed;  he  is  not  permitted 
to  deny  or  refute  the  allegations  made  against  him, 
whatever  may  be  their  falsity  or  whatever  his  reputa- 
tion as  a  just  and  impartial  judge,  or  howsoever  gross 
the  depravity  of  the  affiant.  On  the  above  assumption, 
upon  the  filing  of  such  an  affidavit  the  judge,  without 
any  opportunity  for  a  hearing  on  the  question  of  his  al- 
leged bias  or  prejudice,  is  summarily  removed  from  the 
case  on  the  ground  of  bias  or  prejudice  and  his  reputa- 
tion, which  is  his  property  and  most  valued  possession, 
blasted  in  the  eyes  of  the  community,  who,  without  un- 
derstanding the  peculiar  character  of  the  law  under 
which  the  judge  is  removed,  but  knowing  that  he  has 
been  accused  of  bias  or  prejudice,  naturally  conclude 
that  such  a  charge  has  been  satisfactorily  established 
against  him  when,  in  point  of  fact  his  mouth  and  the 
mouths  of  witnesses  on  whom  he  might  otherwise  rely, 
are  absolutely  sealed.  But  this  court  cannot  impute  to 
Congress  an  intent  that  a  convicted  felon  should  be  able 
to  oust  the  judge  before  whom  he  was  tried  from  further 
proceeding  in  the  case. 

"It  is  abhorrent  to  one's  sense  of  justice  that  judi- 


SUGGESTIONS  FOR  EEFORMS       225 

cial  reputations  should  be  at  the  mercy  of  convicted 
criminals  whose  false  affidavits  the  judges  are  not  per- 
mitted to  refute.  A  judge's  reputation  is  his  property, 
of  which  he  should  not  be  deprived  without  due  process 
of  law.  The  affidavit  in  question  is  false,  insulting  and 
malicious,  and,  as  it  is  unauthorized  by  the  law,  it  has 
no  proper  place  among  the  files  of  this  court." 

The  foregoing  statement  of  the  learned  Justice 
seems  to  be  a  correct,  if  somewhat  intemperate,  inter- 
pretation of  the  statute  discussed.  The  purpose  of 
the  statute  seems  to  be  exactly  what  the  judge  de- 
clared it  to  be.  In  fairness  to  the  Congress,  how- 
ever, it  must  be  assumed  that  only  grave  abuses 
would  have  called  forth  such  a  statute.  The  recall 
with  all  of  its  requirements  insuring  delay,  dis- 
cussion, full  public  hearings,  careful  consideration, 
and  finally  the  deliberate  action  of  thousands  of  vot- 
ers, is  an  extremely  mild  method  of  removing  a 
judge,  compared  with  the  method  provided  by  the 
Congress  in  the  above  quoted  statute. 

It  must  be  expected  that  the  conflict  with  the 
courts  will  be  a  hard  one,  for  the  judiciary  is 
undoubtedly  looked  upon  as  the  last  and  final  bul- 
wark of  Special  Privilege.  If  the  judges  will  re- 
trace their  steps  and  for  the  future  exercise  only 
constitutional  powers,  it  is  probable  that  their  juris- 
diction will  long  be  left  unquestioned.  If  they  will 
never  declare  a  statute  unconstitutional  unless  it  is 
so  plainly  so  that  any  person  of  intelligence,  whether 


226         OUR  JUDICIAL  OLIGAECHY 

a  lawyer  or  not,  can  see  it,  they  will  find  that  all 
the  people  are  willing  that  the  Constitution  shall  be 
placed  above  any  statute.  It  should  not  take  a  law- 
yer to  determine  in  a  given  case  whether  two  plainly 
written  provisions  of  law  —  one  a  constitution,  the 
other  a  statute  —  conflict  or  not,  and  if  the  question 
of  whether  there  is  a  conflict  is  so  doubtful  that 
judges  divide  almost  equally  upon  it,  the  people  have 
a  right  to  believe  that  it  is  not  the  Constitution,  but 
the  preconceived  notions  of  the  judges  with  which, 
the  statute  conflicts. 

If  the  courts  will  interpret  statutes  according  to 
the  intention  of  the  law-making  branch  of  the  govern- 
ment, without  reference  to  their  own  economic  or 
social  theories,  and  fully  recognize  the  right  of  the 
people  within  plain  constitutional  limits,  to  make 
such  laws  as  they  please,  another  great  cause  of 
popular  discontent  will  be  removed.  But  if  the 
courts  as  now  constituted,  will  not  do  these  things 
voluntarily,  then  they  will  be  reconstructed  and 
forced  to  do  them.  The  recall  and  also  the  popular 
election  of  all  judges  for  short  terms  seem  at  this 
time  measures  likely  to  be  adopted  in  an  effort  to 
force  the  courts  back  into  their  original  constitu- 
tional position  where  they  will  serve  the  interests  and 
protect  the  rights  of  the  whole  people. 


TABLE  OF  CASES 

A 

PAGE 

Ableman  v.  Booth,  21  How,  506 176 

Ableman  v.   Booth,   11   Wis.,  498 176 

Adair  v.  United  States,  208   U.  S.,   161 44,  136 

Amalgamated  Society,  etc.,  v.  Osborne,  L.  R.  App.  Cases, 

1910,  p.  87  136 

Arthur  v.  Oaks,  63  Fed.,  310 136 

B 

Baker  v.  Empire  Wire  Co.,  102  A.  D.   (N.  Y.),  125 120 

Baltimore  &  P.  R.  R.  v.  State,  75  Md.,  152 117 

Bancroft  v.  Boston  &  Me.  Ry.,  30  Alt.   (N.  H.),  409 117 

Barnes  v.  Typographical  Union,  232   111.,  424 146 

Barry  v.  Mercein,  5  How.   103,   119 222 

Bennett  v.  Harris,  68  Misc.    (N.  Y.),  503 5 

Berns  v.  Coal  Co.,  27  W.  Va.,  285 119 

Boyd  V.  Harris    (Pa.  State) ,  35  Alt.,  222 117 

Boyer  v.  West.  Union  Tel.  Co.,  124  Fed.,  246 142 

Brooks,  Admr.,  v.  Sou.  Pac.  Co 43 

Brown  v.  Maxwell,  6  Hill    (N.  Y.),  592 112 

C 

Calder  v.  Bull,  3  Dalla,s,  385 31 

Carl  V.  Bangor,  etc..  Ry..  43  Me.,  269 120 

Casey  v.  Typographical  Union,  45  Fed.,   135 147 

Cashman  v.  Chase,  156  Mass.,  342 120 

Conway  v.  Wade,  L.  R.  King's  Bench,  1908,  Vol.  II,  p.  844  135 

Crown  V.  Orr,  140  N.  Y.,  450 118 

Curran  v.  Galen,  152  N.  Y.,  33 147 

D 

Davidson  v.  Sou.  Pac.  R.  R.,  44  Fed.,  476 118 

Delaware  v.  Glascow   223 

227 


228  TABLE  OF  CASES 

PAOB 

Dred  Scott  v.  Sanford,  19  How,  393 174 

Dubuque  v.  Railroad  Co.,  39  la.,  95,  96 170 

Durkin  v.  Kingston  Coal  Co.,  171  Pa.,  193 137 

E 

Eakin  v.  Raub,  12  Seargent  and  Rawle,  p.  33 28 

Employers'  Liability  Cases,  207  U.  S.,  463 42 

Ex  parte  Young,  209  U.  S.,  123 38 

F 

Farmers  Loan  &  Trust  Co.  v.  Northern  Pac.  Ry.,  60  Fed., 

803     141 

Farrer  v.  Close,  L.  R.,  4  Q.  B.,  602 140 

Ferguson  v.  Central  Iowa  Ry.,  58  la.,  293 117 

Finnegan  v.  N.  Y.  Contg.  Co.,  194  N.  Y.,  244 120 

Fletcher  v.  Peck,   6  Cranch,   87 158 

Farwell  v.  Boston  &  Wooster  R.  R.,  4  Metch.   (Mass.),  49.  112 

Frank  v.  Denver,  etc.,  Ry.,  23  Fed.,  757 147 

G 

Gaffney  v.  N.  Y.,  etc.,  Ry.,  15  R.  I.,  456 117 

Gallagher  v.  Newman,  190  N.  Y.,  444 120 

Galveston,  H.  &  San  A,  R.  R.  v.  State  of  Texas,  201  U.  S., 

217   39 

Gombert  v.  McKay,  201  N.  Y.,  27 63 

Gompers,  Mitchell  and  Morrison  v.  Buck  Stove  &  Range 

Co.,  221   U.  S.,  418 148 

Griffin  v.  Interurban  St.  Ry.  Co.,  96  A.  D.   (N.  Y.),  636. .  65 

Guilmartin  v.  Solvay  Process  Co.,  189  N.  Y.,  490,  494 120 

H 

Harkow  v.  N.  Y.  City  Ry.  Co.,  121  A.  D.  (N.  Y.),  194. . . .  68 

Hayburn's  Case,  2  Dallas,  412 31 

Heiser  v.  Cincinnati,  etc.,  Co.,  141  A.  D.    (N.  Y.),  400...  63 

Hepburn  v.  Griswold,  8  Wallace,  603 177 

Higgins  V.  O'Keefe,  79  Fed.,   900 118 

Hope  V.  Scranton  &  Lehigh  Coal  Co.,  120  A.  D.    (N.  Y.), 

595    120 

Hopkins  v.  Oakley  Stove  Co.,  83  Fed.,  912 148 

Hornby  v.  Close,  L.  R.  2  Q.  B.,  153 140 

Howard,  Admrx.,  v.  111.  Cent.  R.  R,  and  Yazoo  &  Miss. 

Valley  R.  R.  Q>.    43 

Hughes  V.  Winona  St.  Ry.  Co.,  27  Minn.,  137 117 


TABLE  OF  CASES  220 

PAGE 

Hyatt  V.  Corkran,  188  U.  S.,  691 155 

Hylton  V.  U.  S.,  3  Dallas,  171 32 

I 

Independent  Tug  Line  v.  Lake  Superior  Lbr.  Co.,   131   N. 

W.,  409   40 

In  re  MeCardle,  70  Wall,  506 222 

In  re  Thatcher,   80  Ohio  St.,   492 5 

In  re  Vidal,   179  U.   S.,   126 222 

Ives  V.  South  Buffalo  R.  R.  Co.,  201  N.  Y.,  271...   45,  63,  137 

J 

Jacobs,  Matter  of,  98  N.  Y.,  98-113 , 10 

K 

Kellogg  V.  N.  Y.  Edison  Co.,  120  A.  D.    (N.  Y.),  410. .  . .  63 

Kimnierle  v.  Carey  Printing  Co.,  144  A.  D.   (N.  Y.),  714.  63 

Knisley  v.  Pratt,  148  N.  Y.,  372 118 

Knox  V.  Lea,  12  Wallace,  457 177 

L 

I^egal  Tender  Cases,  12  Wal.,  457 178 

Lochner  v.  New  York,   198  U.  S.j  45 34 

Lutz  V.  Atlantic,  etc.,  Ry.,  53  Amer.  &  Eng.  Ry.  Cases,  478  120 

M 

Marbury  v.  Madison,  1  Cranch,  137,  p.  176 32 

Markt  v.  Knight,  2  K.  B.,  1021;  79  L.  J.  K.  B.,  939 136 

Martin  v.  Hunter,  1  Wheaton,  326 25 

Mastin  v.  City  of  N.  Y.,  101  N.  Y.,  81 128 

MeCardle,  In  re.,  7  Wall,  506,  513 222 

McCulloch  V.  Maryland,  4  Wheaton,  316 32 

McGowan  v.  N.  Y.  Contg.  Co.,  143  A.  D.   (N.  Y.),  1 63 

Milligan  v.  Clayville  Knitting  Co.,   137  A.  D.,    (N,  Y.), 

383    63,  118 

Millsaps  V.  Louisville,  etc.,  Ry.  Co.,  69  Miss.,  423 119 

Mobile  &  Ohio  R.  R.  v.  Thomas,  42  Ala.,  672 118 

Mondu  V.  N.  Y.,  etc.,  Ry.  Co.,  U.  S.  Supr.  Court,  1912. . .  44 

Munsey  v,  Clough,  196  U.  S.,  364 155 

N 

Nappa  V.  Erie  R.  R.,  195  N.  Y.,  176,  184 120 

Needham  v.  Louisville,  etc.,  Ry.  Co.,  85  Ky.,  423 117 


230  TABLE  OF  CASES 

PAGE 

New   York   Central    Iron   Works   v,   Brennan,    105   N.   Y. 

Supp.,  865    147 

N.  0.  J.  &  G.  N.  R.  R.  Co.  V.  Hughes,  49  Misc.,  258,  289.  .    119 

Northern  Pac.  Ry.  v.  Charless,  162  U.  S.,  359 119 

Northern  Pac.  Ry.  v.  Peterson,  162  U.  S.,  346 119 

P 

Paine  Lumber  Co.,  et  al.,  v.  Neal,  et  al.,  U.   S.  Circuit 

Court  of  Appeals.    1911    150 

People  V,  Spencer,  201  N.  Y.,  105 68 

Perigo  V.  C.  R.,  etc.,  Ry.,  52  la.,  276 117 

Pettibone  v.  Nicholas,  203  U.  S.,  192 155 

Pollock  V.  Farmers'  Loan  &  Tr.  Co.,  157  U.  S.,  429 49 

Re-hearing,    158  U.   S.,   601 49 

Priestly  v.  Fowler,  3  Mee.  &  Will.,  p.  1 110 

Proctor  V.  Ry.,  64   Mo.,    112 120 

Pullman  Co.  v.  Kansas,  216  U.  S.,  56 39 

Q 

Quinlan  v.  Lackawanna  Steel  Co.,  107  A.  D.  (N.  Y.),  176.    120 

R 

Reynolds  v.  Davis,  198  Mass.,  292 146 

Robertson  v.  Baldwin,  165  U.  S.,  275 154 

S 

Schwartz  v.  International,  etc..  Union,  68  Miss.    (N.  Y.), 

529    147 

Scott,  Dred,  v.  Sandford,  19  How,  393 174 

Scudder  v.  Interurban  St.  Ry.  Co.,  96  A.  D.   (N.  Y.),  340.  65 

Shepard  v.  Northern  Pac.  R.  R.,  et  aL   (Minn.),  1911 39 

Sisco  V.  L.  &  H.  Ry.,  145  N.  Y.,  296 117 

Smith  V.  N.  Y.  Central  R.  R.,  177  N.  Y.,  224,  229 128 

Southern  Pac.  Ry.  v.  MoGill,  44  Pac,  302 118 

Soon  Hing  v.  Crowley,  113  U.  S.,  703-711 161 

Standard  Oil  Co.  of  N.  J.,  et  al.,  v.  U.  S.,  221  U.  S.,  1 73 

State  V.  Clausen,  117  Pac.  Rep.,   1101 45 

State  ex  rel.  Cooke  v.  Hauser,  122  Wis.,  562 71 

State  V.  Donaldson,  32  N.  J.  Law,  151 145 

State  V.  McClallan    (Oregon,  1911)    217 

State  V.  Stockford,  77  Conn.,  227 147 

Sullivan  v.  Fitchburg,  etc..  Ry.,  161  Mass.,  125 117 

Sunbury  &  Erie  R.  R.  v.  Cooper,  33  Pa.  State,  278 161 


TABLE  OF  CASES  231 

T 

PAOB 

Taff  Vale  Ry.  v.  Amalgamated  Society  of  Ry.  Servants,  L. 

R.  App.  Cases,   1901,  p.  426 133 

Thatcher,  In  re,  80  Ohio  St.,  492 5 

Thomas  v.  Cincinnati,  etc..  Ry.,  62  Fed.,  803 144 

Thompson  v.  Thompson,  21S  U.  S.,  61 1 60 

Trustees  of  Dartmouth  College  v.  Woodward,  4  Whcaton, 

517    162 

U 

United  States  v.  American  Tobacco  Co.,  221  U.  S.,  106..  73 

United  States  v.  Booth,  21  How,  506 177 

United  States  v.  Joint  Traffic  Ass'n,  76  Fed.,  895 85 

United  States  v.  Kane,    23    Fed.,    748 147 

United  States  v,  Trans-Missouri  Freight  Ass'n,  166  U.  S., 

290    76 

United  States  v.  Rauscher,    119  U.   S.,   419 155 

V 

Vidal,  In  re,  179  U.  S.,  126 222 

W 

Ware  v.  Hylton,  3  Dallas,  211 27 

Warner  v.  Erie  R.  R.,  39  N.  Y.,  468 119 

Warren  v.  U.  S.,  183  Fed.,  718 7,  155 

Western  Union  Tel.  Co.  v.  Kansas,  216  U.  S.,  1 39 

Whalen  v.  Citizens  Gas  Light  Co.,  151  N.  Y.,  70 127 

White  V.  Witteman  Lith.  Co.,  131  N.  Y.,  631 118 

Y 
Young,  Ex  parte,  209  U.  S.,  123 38 


INDEX 

A 

PAGE 

A  charter  is  a  contract 168 

Acts  of  Congress  should  have  a  reasonable  contention 93 

Addams,  Jane,  on  Class  Feeling  Among  Workingmen 10 

Aldrich   (Governor  of  Nebraska)   on  Minn.  Rate  Case...,  13 

American  Association  for  Labor  Legislation 113 

American  Tobacco  Case 73 

Anti-Trust  Act 74 

Appeal  to  Reason 6 

Arena,  The,  quoted 3 

Arizona  recall  provisions  of  constitution 205 

Assault  and  Battery  Cases 94 

Assumption  of  Risk 41 

Attitude  of  American  Courts  in  Labor  Cases 122 

B 

Bar  Association  of  New  York  on  Law's  Delay 188 

Beck,  Asst.  Attorney  Gen'l,  on  Anti-Trust  Act 103 

"  Blacklisting  " 142 

Blackstone  on  power  of  courts  to  interpret  Acts  of  Legis- 
lature      32 

Board  of  Supervisors,  San  Francisco 161 

Boycotts    148 

Brewer,  Justice,  on  the  Law's  Delay 187 

Brown,  Justice,  on  Income  Tax  Decision 53 

C 

Canute,  King,  Statutes  of 138 

Capital  the  Fruit  of  Labor 109 

Chase,  Justice,  on  Interpreting  Acts  of  Congress 32 

Child's  Welfare  Exhibit 10 

Clark,  Judge,  on  Judicial  Supremacy 29 

Clark,  Judge,  on  Income  Tax  Decision 55 

233 


234  INDEX 

PAQB 

Code  of  Ethics  of  American  Bar  Association 200 

Combinations  in  Restraint  of  Trade 99 

Commission  of  Law's  Delay 192 

Common  Law  a  Codeless  Myriad  of  Precedent 153 

Compulsory  Arbitration 44 

Conflict  Over  Judicial  Powers 28,  178 

Confusion  of  Property  With  Privilege 163 

"  Contempt  of  Courts  a  Legal  Thumb-Screw  " 198 

Control  of  Public  Service  Corporations 38-40 

Constitution  Not  Intended  to  Embody  a  Particular  Eco- 
nomic Theory 35 

Constitutional  Convention 29 

Contributory   Negligence 124 

Cooley,  Justice,  on  Dartmouth  College  Case 170 

Corporations  Control  Courts 3 

Courts  and  Labor,  Hostility  Between 15 

Courts  Invalidate  Statutes  Because  They  Disapprove  Them  56 

Courts  vs.  The  People 22 

Courts  Thwart  Humane  Legislation 108 

Courts  May  Invalidate  Acts  of  Congress 23 

Courts  Have  Carried  Doctrine  of  Judicial  Nullification  of 
Statutes    Far    Beyond    Bounds    Prescribed    by    Earlier 

Judges 30 

Courts  the  Bulwark  of  Special  Privilege 225 

Cox,  Justice,  on  Tobacco  Case 87 

Crisis   Foreshadowed 181 

Criticism  of  Courts  by  Attorney 5 

Criticism  of  Court's  First  Step  Toward  Reform 196 

Cumulative  Penalties,  Recovery  of 66 

D 

Dangerous  Tendencies  of  the  Courts 184 

Dartmouth  College  Case. 162 

Debs  Case 154 

Decisions  Become  Precedents 108 

Decrees   of   Courts   Waste   Paper   Without   Confidence   of 

People   173 

Democratic  Platform,  1908 8 

Differences  Should  be  Settled  Out  of  Court 190 

Direct    Primaries 20 

Disabilities  of  Married  Women,  Removal  of 60 

Disaster  From  Exercise  of  Legislative  Power  by  Judiciary  58 

Distrust  of  the  Courts 2 

Douglas,  Stephen  A.,  on  Obedience  to  Decrees  of  Courts. .  175 

Dred  Scott  Case 22, 174 


INDEX  235 

E 

PAQB 

Early  English   Statutes 137 

Election  of  President  and  Senate  by  Popular  Vote 19 

Eliot's  Debates 26 

Employers'  Liability  Act,  41 ;  Cases 42,  43,  44 

Employes, —  Assumption  of  Risk 41 

English    Constitution 24 

English  Labor  Legislation 131 

Extradition  of  McNamara 155 

F 

Factory  Acts  120 

"  Fellow  Servant "  Eule 46,  1 12 

Field,  Justice,  on  Income  Tax  Decision 51 

Fireman    on    Locomotive    Fellow    Servant    of    Train    Dis- 
patcher      119 

Fourteenth    Amendment 36 

Fourteenth  Amendment,  Shield  to  Protect  Corporations..  38 
Fourteenth  Amendment,  Stretched  to  Include  All  Manner 

of  Cases 37 

Fowler    Case 109 

G 

Georgia  Land  Cases 158 

Government  of  Law  or  a  Government  of  Men 58 

Governors'  Conference  at  Spring  Lake,   1911 13 

Grosscup,  Judge,  on  American  Tobacco  Case 102 

Grounds  of  Complaint  Against  the  Courts 22 

H 

Hadley  on  "  Constitutional  Position  of  Property  " 11 

Haines  on  Conflict  Over  Judicial  Powers 28 

Hamilton,  Alexander,  on  Electoral  College 208 

Hamilton,  Alexander,  on  The  Senate 211 

Hamilton's   Argument   Answered 212 

Harlan,  Justice,  on  American  Tobacco  Case 96-97 

Harlan,  Justice,  on  Interpretation  of  Statutes 34 

Harlan,  Justice,  on  Income  Tax  Decision 53 

Holmes,  Justice,  on  Limiting  Hours  of  Labor 35 

Hostility  Between  Courts  and  Labor 15 

How  Not  to  Reform  the  Courts 187 


236  INDEX 

I 

_                        n,           -n.  PAOE 

Income  Tax  Decision 49,  51,  53,  55 

Independence  Party  Platform,   1908 '    8 

Inhuman   to   Compel   Employes   to    Accept    Responsibility 

for  Accidents 116 

Initiative  and  Referendum 20 

Injunction,  Rationale  of 157 

Interstate  Commerce  Rates 38-41 

Iredell,  Justice,  on  Interpretation  of  Statutes 31 

J 

Jackson  and  the  courts 174 

Jackson,  J.,  on  Income  Tax  Act 52 

Jay,  John,  on  Power  of  Supreme  Court  Under  the  Consti- 
tution    172 

Jefferson  and  the  courts 174 

Joint  Traffic  Freight  Case 80,    81 

Judges  last  to  hear  of  adverse  criticism 3 

Judges  think  in  terms  of  the  rich 107 

Judges  not  chosen  by  the  people 3 

Judges  the  Legislators 105 

Judicial  Legislation 34,    53 

Judicial  Supremacy 29 

Judiciary  has  resisted  movement  toward  Democracy 220 

Jury  trial  in  Contempt  Cases 9 

K 

Kent,  Justice,  on  Dartmouth  College  Case 169 

L 

Labor  Questions  in  Courts  of  Massachusetts 156 

Labor  the  Superior  of  Capital 109 

Lacomb,  Justice,  on  American  Tobacco  Case 86 

Laws  intended  to  govern  charges  by  public  service  cor- 
porations have  become  a  scrap  heap  of  twisted  statutes.  38 

Legal  Tender  Case 32 

Legislative  efforts  to  correct  abuses  by  the  courts 15 

Legislature's  right  to  interpret  the  Constitution 26,    27 

Limiting  the  right  to  appeal,  no  relief 195 


INDEX  237 

PAGE 

Lincoln  on  Capital  and  Labor 109 

Lurton,  Justice,  on  "  A  Government  of  Law  or  a  Govern- 
ment of  men  " 5g 

M 

Madison,   President,  on  Legislature's  Right  to  Interpret 

the  Constitution 25,  26 

Magna  Charta,  principles  of 1 

Married  Women's  Disability,  Removal  of 60 

Marshall,  Justice,  on  Interpretation  of  Constitution 27 

Master  and  Servant,  Common  Law  Rights 67 

Miller,  Justice,  on  Interpretation  of  Acts  of  Congress ....  32 

Minnesota  Rate  Case 13 

Modern  Laws  Affecting  Labor  Unions 142 

Moody,  Justice,  on  Employers'  Liability  Act 43 

Morality  of  Legislature  Not  to  be  Questioned  by  Courts. .  161 

N 

National  Progressive  Republican  League 20 

Negligence  of  Fellow  Servant 112 

New  York  Railroad  Law 64 

No  Department  of  Government  Has  Right  to  Mark  Out 

Limits  of  Other  Departments 25 

Noyes,  Justice,  on  American  Tobacco  Case 87 

O 

Oklahoma  Constitutional  Provision 9 

One  Man  Nullified  the  Act  of  Seventy-five  Million  People. .  55 

"  Open  Shop  " 150 

P 

Peckham,  Justice,  on  Railroad  Rate  Cases 77 

Peoples'  Party  Platform,  1908 9 

"  Picketing "    146 

Poor  Man  Not  on  Equality  With  the  Rich  in  Courts 106 

Popular  Argument  Against  "  Recall  " •  ■  214 

Power  of  Courts  to  Invalidate  Acts  of  Congress  and  Legis- 
latures   23,  29 

President's  Power  Over  Courts 173 

Priestly  Case 109 


238  INDEX 

PAGE 

Pullman  Company  Case 144 

Pure  Food  Law 68 

R 

Recall  of  Judges,  205;  Arguments  Against,  207,  214;  Taft 

on  Recall,  209;  Recall  in  Arizona,  205;  Recall  in  Oregon,  218 
Relation  of  the  Individual  to  the  Government  Changing. .  22 
Remaking  of  the  Constitution  by  the  People  and  the  Courts  17 
Representatives  of  the  People  Should  Obey  the   Popular 

Will 20 

Republican  Party  Platform,  1908 8 

Revolution  May  be  Necessary  to  Correct  Abuses 16 

Right  of  Employes  to  Quit  Work 145 

Risk  of  Employment 112 

Roosevelt  on  the  Courts 6 

Roosevelt's   Message,    1904 41 

Ryan,  Judge,  on  the  Menace  of  Wealth 181 

S 

Sailor's  Case 154 

Sanborn,  Justice,  on  Minnesota  Rate  Case 13 

Scott,  Dred,  Case 22 

Secret   Ballot 19 

Sheriff's  Power  to  Enforce  Decrees  of  Court 17B 

Sinking  Fund  Case 33 

Smith  on  Spirit  of  American  Government 28,  30 

Smuggling  Cases 178 

Socialist  Party  Platform,  1908 8 

Spaight  on  Power  of  Courts  to  Interpret  the  Constitution  28 

Standard  Oil  Cases 73 

State  Court's  Power  to  Interpret  Statutes 27,  28 

State  Regulation  of  Railway  Rates  (Wisconsin) 69 

Statistics  of  Appealed  Cases;  New  York,  191,  Wisconsin. .  193 

"  Statute  of  Laborers  " 130 

Statutes  Construed  to  Express  Views  of  Court 57 

Stephens,  James  Fitzjames,  on  "  Strikes  " 139 

Story,  Justice,  on  Interpretation  of  Acts  of  Congress ....  33 

Street  Car  Transfers 63 

Strong,  Justice,  on  Interpretation  of  Statutes 32 

Supreme  Power  Not  in  Hands  of  the  People 3 

T 

Taff  Vale  Case 133 

Taft's  Message,  1910 84 


INDEX  289 

PAGE 

Tenement  House  Legislation  in  New  York 10 

Thompson,  Seymour  D.,  on  Tendencies  of  the  Courts 183 

Tobacco  Case 73 

Trades  Disputes  Act 135 

Trade-Mark   Case 32 

Tradition   Exploded 21 

Trans-Missouri  Freight  Ass'n  Case 76,  80 

U 

United  Brotherhood  of  Carpenters  and  Joiners 150 

United  States  Circuit  Courts  Abolislied 221 

"  Unreasonable  Restraint  "  of  Trade 77 

Untermyer,  Samuel,  on  Tobacco  Cases 104 

W 

Waite,  Justice,  on  Interpretation  of  Statutes 33 

"  Warner   Bill  "    82 

War  Safe  Compared  to  Railroading 113 

Webster,  Daniel,  on  Dartmouth  College  Case 165 

Western  Union  Telegraph  Co.  Case 142 

White,  Justice,  on  Railroad  Rate  Case 79 

Winslow,   Justice,  on   Certification  of  Political  Nominee 

(Wis.)   72 

Wisconsin   State   Central   Committee 71,    72 

Wisconsin's  Workmen's  Compensation  Law 46 

Workmen's  Compensation  Laws 45,    46 

Wrong  Decisions,  Effects  of 195 


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